Rutgers School of Law, OAL case ACPE185

93 N.J.L.J. 505
July 9, 1970

ADVISORY COMMITTEE ON PROFESSIONAL ETHICS

Appointed by the New Jersey Supreme Court

OPINION 185

Conflict of Interest
Assistant County Prosecutor
Co-Owner of Building - Office Associate

    Under consideration here is whether an attorney's association with an assistant county prosecutor renders his practice in criminal, quasi-criminal or penal matters improper by virtue of R. 1:15. (The inquirer uses the words "municipal matters" rather than "penal matters" as used in R. 1:15. Since a few municipal courts have limited civil jurisdiction by virtue of N.J.S. 2A:8-24, we use the words of R. 1:15.)
    The inquirer is an individual practitioner and presently shares the office space with a two-man partnership on the second floor of a converted home. He pays rent to the partnership and uses its law library and copying machine. One of the partners was recently appointed an assistant county prosecutor. Because of the
limitations on the practice of the individual practitioner, imposed by the applicable provisions of R. 1:15 (the applicable portions of the Rule are R. 1:15(a) which provides that "[a]n attorney who is a sheriff or county prosecutor, or is in the employ or service of such an official, shall not practice on behalf of any defendant in any criminal, quasi-criminal or penal matter, whether judicial or administrative in nature"; R.1:15-4 which provides that "such limitations shall also extend to any attorney who is his ... office associate ..."; and R. 1:15-5(b) which provides that "[t]he term 'office associates' as used in R. 1:15 includes attorneys who share common office facilities"), he and the partnership are considering buying a two-story home located on the same street as their present office and converting it into an office building. The building can be so arranged that the inquirer will have a three-room office completely separate from a five-room office to be occupied by the partnership. Each office will have a separate private entrance from the street with separate bathrooms, facilities and heating systems. The only facility to be shared, says the inquirer, will be a parking area. No fees will be shared and no files will be worked on together. He further states that the plan in purchasing the building is as follows:
    Because the partnership will use two-thirds of the space and I will use one-third of the space in the building, each individual participant will advance one-third of the monies necessary to purchase the house. The three participants will hold title as tenants in common. Each month, each individual participant will pay one-third of the mortgage, interest, tax, and maintenance expenses. Each office suite will be responsible for the utilities consumed by it; e.g., electricity, heat, and water. Contributions will equal expenses.

    The limitations of R. 1:15, it will be observed, extend to any attorney who is an "office associate" of the attorney representing a public body, in this case the assistant county prosecutor, and the term "office associates," as used in the Rule, "includes attorneys who share common office facilities." We considered the

term "office associates" in N.J. Advisory Committee on Professional Ethics, Opinion 74, 88 N.J.L.J. 357 (1965), wherein two attorneys dissolved their partnership and continued to maintain their offices in the same space in a small office building but rearranged them so that each attorney had a separate office entrance, a separate waiting room, a separate work room and individual offices with a common corridor between them to rest rooms and a general purpose room used by each attorney for conferences and for storage purposes. Each remitted his rent separately and their respective practices were in no way related except that, upon occasion, one would refer work to the other on a profit-sharing basis. One of the attorneys was appointed municipal attorney and the inquiry concerned the propriety of the other practicing before agencies of the municipality of which his ex-partner was the municipal attorney. We held that the facts constituted the attorneys "office
associates" within the meaning of the Rule which was then R.R. 1:26-5(c) and such practice would be improper. We also made reference to the application of the Canons of Professional Ethics as set forth in our Opinion 4, 86 N.J.L.J. 375 (1963), and 22, 87 N.J.L.J. 13 (1964).
The facts here are similar to the facts in our Opinion 74, supra, except that the only office facility shared in common is the parking area. But does the non-sharing of "common office facilities" exclude from consideration all other elements of what may constitute an association? Lawyers cannot be considered office associates merely because their offices are in the same building or because they share a common parking area but here there are additional factors. There are ownership of the property as tenants
in common, equal participation in payment of mortgage interest, tax and maintenance expenses and the fact that they are presently office associates and merely propose to relocate their offices to avoid the implication of the words "common office facilities" as used in the Rule. The thrust of R. 1:15 is to promote public confidence in the legal profession and in our system of justice. One of its purposes is to enhance the public image of the profession by preventing even the appearance of impropriety. In N.J. Advisory Committee on Professional Ethics, Opinion 8, 86 N.J.L.J. 718 (1963), we said: "An attorney should not only avoid all impropriety, but should likewise avoid the appearance of impropriety." The ABA Comm. on Professional Ethics and Grievances, Opinion 49 (1931), used the following language to express the ethical principle involved:
...If the profession is to occupy that position in public esteem which will enable it to be of the greatest usefulness, it must avoid not only all evil but must likewise avoid the appearance of evil.

Similar pronouncements may be found in N.J. Advisory Committee on Professional Ethics, Opinion 168, 93 N.J.L.J. 7 (1970), and Opinion
170, 93 N.J.L.J. 18 (1970), and in Canon 9 of the Code of Professional Responsibility adopted by the American Bar Association on August 12, 1969, effective January 1, 1970.

If the practice of the inquirer in criminal, quasi-criminal and penal matters is improper now, because of his association with the two-man partnership, would the appearance of impropriety be erased from the public mind, if he and the partnership merely moved into another building which they purchased together and of which they were the sole occupants? We think not and therefore conclude that under the facts presented it would be improper for the inquirer to practice in criminal, quasi-criminal and penal matters not only because he would be an office associate and precluded by the limitations contained in R. 1:15 but because the appearance of
impropriety proscribes it.

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