May members of a law firm appear before a city's court and agencies when one partner works full time for that city in a non-legal civil service job enforcing the building code?

Plain-English summary

A law firm asked whether its members could represent clients before the municipal court and local bodies of a city in which one member was employed full time in a lay civil-service job as supervisor of rehabilitation of dwellings. That partner was hired to enforce the building code: he held hearings, issued directives to correct violations, and appeared as a witness when an alleged code breach reached court. The firm noted he was a full-time city employee engaged in non-legal work who shared in the fees the firm received from clients it represented before city boards.

The Committee said those facts made no difference in the result, and that its conclusion would be the same even if no fees were shared and the employment were only part time. It held it would be improper for a city employee's firm to represent clients before that city's court or any of its bodies. When an attorney is a public official, his behavior is judged by the ethics of the profession: as a municipal official he may not appear in any proceeding against the city (Opinion 53), nor where his employer is not involved and only private parties are concerned, because the public will suspect that the firm's success was attributable to his position or influence (Opinion 64). A lawyer may not do what his partner may not do, citing Drinker and the Committee's Opinions 54 and 68.

The Committee concluded that none of the firm's members should appear before the city court or any of the city's bodies where one firm member is employed in a lay capacity, quoting a New York City Bar opinion that the conflict possibilities can be avoided only if a lawyer employed full time by the government withdraws from his partnership.

Currency note

This opinion was issued in July 1965, before New Jersey's September 13, 1971 adoption of the Disciplinary Rules (Code of Professional Responsibility), and well before the 1984 Rules of Professional Conduct and all later revisions. It applied the Canon 6 conflict-of-interest principles, including the imputation of one partner's disqualification to the whole firm. Those subjects are now treated under RPC 1.7 and RPC 1.10. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific requirement mentioned here.

Common questions

Q: Could the firm appear before the city's court and agencies?

A: No. The Committee held it improper for any member of the firm to appear before the city's court or any of its bodies where one partner was a city employee, because a lawyer may not do what his partner may not do.

Q: Did it matter that the partner's city job was non-legal?

A: No. The Committee said the fact that the partner was a full-time city employee engaged in non-legal work, who shared in the firm's fees, made no difference, and that the result would be the same even part time or with no fee sharing.

Q: How could the firm avoid the conflict?

A: The Committee quoted a New York City Bar opinion that the conflict could be avoided only if the lawyer employed full time by the government withdrew from his partnership.

Background and rules framework

The opinion applied the Canon 6 conflict-of-interest principles, including the rule that a partner's disqualification is imputed to the firm ("a lawyer may not do what his partner may not do"), drawing on the Committee's Opinions 53, 64, 70, 54, and 68 and on Drinker. In current New Jersey terms, the analysis maps to RPC 1.7 (conflicts) and RPC 1.10 (imputed disqualification).

Citations and references

Other authorities:

• Canons of Professional Ethics, Canon 6 (conflicting interests)
• Drinker, Legal Ethics 106 (1953)

Other opinions cited:

• NJ ACPE Opinions 53, 64, 70, 54, and 68: a municipal-official lawyer (and his partners) may not appear before the city's court or agencies
• Association of the Bar of the City of New York, Committee on Professional Ethics, Opinion 332 (1938): a full-time government lawyer should withdraw from his partnership

See also

• NJ ACPE Op. 79: A Housing Authority Attorney's Private Practice
• NJ ACPE Op. 88: A Lawyer Who Sits on the Zoning Board
• NJ ACPE Op. 82: An Authority's Attorney Representing Developers

Source

• Landing page: https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp78-1.html

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

88 N.J.L.J. 460
July 15, 1965

OPINION 78

Conflict of Interest Municipal Employee's Partners

A firm of attorneys ask whether or not its members may represent clients before the municipal court and local bodies of a city in which one member of the firm is employed in a lay civil service job as supervisor of rehabilitation of dwellings.

The supervisor is hired to enforce the building code. He holds hearings, issues directives to correct violations and appears as a witness when an alleged breach of the code reaches the court. The fact that the partner is a full-time city employee engaged in nonlegal work and shares fees which the firm receives from clients for whom they appear before city boards makes no difference in the result reached. Our conclusion would be the same if no fees were shared and the employment were only part-time.

It is the opinion of this Committee that it would be improper for a city employee's firm to represent clients before that city's court or any of its bodies. When an attorney is a public official, his behavior is nevertheless judged by the ethics of the profession. See this Committee's Opinion 70, 88 N.J.L.J. 161 (1965). As a municipal official he may not appear in any proceeding against the city; see our Opinion 53, 87 N.J.L.J. 610 (1964). Nor may he appear where his employer is not involved and only private parties are concerned; for the public will be troubled by the suspicion that the success of his firm may have been attributable to his position or influence; see our Opinion 64, 87 N.J.L.J. 801 (1964). A lawyer may not do what his partner may not do. Drinker, Legal Ethics 106 (1953); see our Opinions 54, 87 N.J.L.J. 689 (1964), and 68, 88 N.J.L.J. 91 (1965). Hence, the city employee's firm may not appear before the city court or any of the bodies of the city where he is employed. As was pointed out in Ass'n. of the Bar, City of New York, Committee on Professional Ethics, Opinion 332 (1938):

...the possibilities of conflict of interest and valid or invalid assumptions detrimental to the Bar can only be avoided if a lawyer employed for full time by the government withdraws from his partnership.

For the reasons stated, none of the members of the firm should appear before the city court or any of the bodies of the city where one firm member is employed in a lay capacity.