Can a lawyer who works for a law school form a partnership with a lawyer who regularly sues that law school on behalf of a union?

Plain-English summary

A lawyer posed several questions about a partnership he wished to form. Attorney A was employed by a law school's clinical program, required to devote 40 hours a week to representing indigent clients. Attorney B, who wanted to form a partnership with A, represented one of the labor unions at the law school and brought suits against the school on the union's behalf. A would work in B's office at least 10 hours a week.

On the first question, the Committee concluded that even though A would not represent the law school and would not appear in any union suit, there was a definite appearance of a conflict of interest. If B sued the school on a union member's behalf and lost, the disgruntled member could claim the union's attorney was too close to the school that employed his partner; and school administrators could be criticized for keeping on the payroll an attorney whose partner was in an adversarial relationship to the school. The Committee noted the appearance was worsened because the two-lawyer partnership tied A's financial condition to the partnership's success.

On the second question, the Committee said the 40-hour/10-hour split would not by itself invalidate the partnership; the problem was the appearance of a conflict described in the first answer. On the third question, B also wished to hire Attorney C, a non-attorney law-school employee who was a member of the union B represented. The Committee concluded this too created a conflict: hiring C, another law-school employee, alongside A made the whole arrangement subject to an appearance of conflict. While the Committee found nothing per se unethical in the partnership between A and B or in hiring C, it held that an adversarial relationship between the partnership and the law school would be improper.

Currency note

This opinion was issued in 1983, before New Jersey's adoption of the 2004 revisions to the Rules of Professional Conduct, and predates the 1984 replacement of the Disciplinary Rules by the RPCs. The 2004 revisions abolished the freestanding "appearance of impropriety" standard the Committee invoked. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Could the two lawyers form the partnership at all?

A: The opinion found nothing per se unethical in forming the partnership, but held an adversarial relationship between the partnership and the law school that employed one partner would be improper because of the appearance of conflict.

Q: Did it matter that the law-school partner would never touch the union suits?

A: No. The opinion concluded the appearance of a conflict remained, because a losing union member could claim the union's lawyer was too close to the school, and the school could be criticized for employing a lawyer whose partner sued it.

Q: Did hiring a unionized non-attorney law-school employee change the analysis?

A: It added to the problem. The opinion concluded that hiring that employee alongside the law-school-employed partner made the whole arrangement subject to an appearance of conflict.

Background and rules framework

The opinion was decided under the conflict and imputation principles then governing New Jersey lawyers, before the 1984 adoption of the Rules of Professional Conduct, and turned on the "appearance of impropriety" standard the Committee then applied. In current terms the analysis maps onto RPC 1.7 (concurrent conflicts of interest) and RPC 1.10 (imputation of conflicts among partners).

Citations and references

Rules of Professional Conduct:

• MR 1.7 / NJ RPC 1.7 (concurrent conflicts of interest)
• MR 1.10 / NJ RPC 1.10 (imputation of conflicts within a firm)

See also

• NJ ACPE Op. 515: Lawyers Sharing Word-Processing and Computer Facilities
• NJ ACPE Op. 516: Partner of a Judge or County-Board Member as Assistant County Counsel
• NJ ACPE Op. 547: Sewerage Authority Counsel Whose Partner Sues the Authority

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp511-1.html
• Issuing authority: New Jersey Supreme Court Advisory Committee on Professional Ethics, via the NJ Courts Supreme Court Committees page

Original opinion text

Reproduced from a full-text mirror of the official opinion for research purposes. The linked official source controls.

111 N.J.L.J. 16, January 6, 1983

OPINION 511

Conflict of Interest Nonunion Law School Employee Forming Partnership with Attorney Representing Union at School

An attorney poses several questions relating to a partnership he wishes to form. The facts relating to each and our conclusion are as follows:

1. Attorney A is an employee of a Law School's Clinical Program providing legal representation to indigent individuals and is required to devote 40 hours per week to this Program. Attorney B wants to form a partnership with Attorney A. Attorney B represents one of the Labor Unions at the Law School and in the course of his representation brings suits against the Law School on behalf of the Union. Attorney A will work in Attorney B's office at least 10 hours per week. Will the formation of a partnership between these attorneys create a conflict of interest?

While Attorney A does not represent the Law School in any legal matters, nor will he appear or participate in any suit the firm brings on behalf of the Union, nevertheless there is a definite appearance of a conflict of interest.

In the event Attorney B brings suit against the Law School on behalf of a Union member and loses, it could be readily claimed by the disgruntled loser that he lost his case because the Union's attorney is too close to the Law School that employs his partner. Similarly the Law School Administrators might very well be criticized for having on the payroll an attorney whose partner is in an adversarial relationship to the School. This appearance of a conflict of interest is worsened by the fact that this will be a two lawyer partnership with Attorney A's financial condition related to the success of the partnership.

2. Would the fact that Attorney A works 40 hours per week in the Law School's Clinical office and 10 hours per week in the partnership office invalidate the partnership?

By itself this certainly should not serve to invalidate a partnership relationship. It is the appearance of a conflict of interest as set forth in the answer to Question 1 which creates the problem.

3. Attorney B would also like to hire Attorney C who works as a non-attorney employee of the Law School but is a member of the Union at the Law School which Attorney B represents. Will the employment of Attorney C create a conflict of interest?

Once again it is our opinion that there is a conflict of interest in this proposed relationship. The hiring of Attorney C, who is also employed by the Law School, together with Attorney A, another Law School employee, makes the entire arrangement subject to an appearance of a conflict of interest. While there is nothing unethical per se in the proposed partnership between Attorneys A and B and the hiring of Attorney C, an adversarial relationship between the partnership and the law school would be improper.