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                                         93 N.J.L.J. 789
                                        November 12, 1970

ADVISORY COMMITTEE ON PROFESSIONAL ETHICS

Appointed by the Supreme Court of New Jersey

OPINION 189

Conflict of Interest
Mayor's Legal Associates

    Of almost 200 opinions of this Committee published so far, 66 have involved questions arising out of the relationship between lawyers or law firms and governmental agencies in which the lawyer or a member of his firm occupies an official position, either elective or appointive. In addition, the Committee has voted to reject a great many inquiries concerning such situations where it seemed obvious that prior opinions had adequately answered the questions presented.
    We are now asked to consider a series of alternate questions including whether a lawyer who is the mayor of a municipality may enter into an association for the practice of law with (a) the judge of the municipal court, (b) the city solicitor, (c) the corporation counsel, (d) the city prosecutor, or a combination of these. We are told that the mayor appoints the judge and the corporation counsel and must approve the appointments of the city solicitor and city prosecutor. It is proposed that the salary or fees (the latter subject to the approval of the mayor) of each of these officials would not be shared among the others in any partnership or association agreement.

    Although one would think it unnecessary for this Committee to promulgate an opinion on such a question, the number and frequency of inquiries in this general category suggest that some members of the bar continue to have difficulty in accepting or applying the standards which have been repeated so often in these opinions. Accordingly, and without reciting the many opinions which we have already promulgated, the Committee will endeavor to restate the governing principles.
    We have repeatedly reminded the bar that "it is necessary not only to avoid actual wrongdoing, but even the appearance of wrongdoing." See, N.J. Advisory Committee on Professional Ethics,
Opinion 187, 93 N.J.L.J. 649 (1970). This is perhaps the most demanding precept of professional discipline. While not set forth, in terms in any of the Canons, it has now been enunciated in the Code of Professional Responsibility in DR 9-101 which, in this context, should be read together with DR 8-101, as follows:
    DR 8-101 Action as a Public Official.
    (A) A lawyer who holds public office shall not:
        (1)    use his public position to obtain, or attempt to obtain, a special advantage in legislative matters for himself or for a client under circumstances where he knows or it is obvious that such action is not in the public interest.

        (2)    Use his public position to influence, or attempt to influence, a tribunal to act in favor of himself or of a client.

        (3)    Accept any thing of value from any person when the lawyer knows or it is obvious that the offer is for the purpose of influencing his action as a public official.

    DR 9-101    Avoiding Even the Appearance of Impropriety.

    (A)    A lawyer shall not accept private employment in a matter upon the merits of which he has acted in a judicial capacity.

    (B)    A lawyer shall not accept private employment in a matter in which he had substantial responsibility while he was a public employee.

    (C)    A lawyer shall not state or imply that he is able to influence, improperly or upon irrelevant grounds, any tribunal, legislative body, or public official.

    The proposed association of the mayor and the other public officials, in any combination, could not fail to generate reasonable criticism in the community, and would almost certainly provoke a host of particular ethical problems in a variety of matters. The inquirer is also referred to the letter and the spirit of the following Rules: R. 1:15-3(b) and (c); R. 1:15-4 and R. 1:15-1(c).
    In our society, lawyers have traditionally been active in the processes of government. Lawyers have quite properly accepted the burdens of public office, both elective and appointive, at every level, but, in so doing, must accept the limitations upon otherwise private affairs which are reasonably required for the maintenance of public confidence in the government and in the integrity of the profession.

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