Rutgers School of Law, OAL case ACPE196

94 N.J.L.J. 65
February 4, 1971

ADVISORY COMMITTEE ON PROFESSIONAL ETHICS

Appointed by the Supreme Court of New Jersey

OPINION 196

Conflict of Interest
Attorney Representing Law Enforcement
Agency and Many Accused of Crime

    The Supreme Court has directed this Committee to consider and report to it on the following questions:
    1. May an attorney regularly engaged in the defense of those accused of criminal acts also serve as attorney for organizations of law enforcement officials?
    2. May an attorney regularly engaged in defense of those accused of criminal acts generally associated with organized or syndicated crime also serve as attorney for organizations of law enforcement officials?
    In order to aid the Committee in considering these problems, the Supreme court requested any member of the bar desiring to comment on them to submit a written memorandum to the Committee. Several such memoranda were received by the attorneys whose representation of the law enforcement agency is involved, and all were considered in arriving at its conclusions.
    Since the Committee has arrived at the decision that question 1 should be answered in the negative, we think it unnecessary to make any decision regarding question 2, as the answer to that is encompassed in our conclusions as to the first query.

    The facts that brought this matter to the attention of the Supreme Court were that the attorneys in question were retained by a law enforcement group and that these attorneys are almost continuously engaged in the state and federal courts in the representation of persons accused of those types of crime which generally are referred to in the public press as being controlled by organized or syndicated groups. An examination of the court records discloses that in recent years these attorneys have represented numerous persons whose names, rightly or wrongly, have been associated in the public press with organized or syndicated crime, and some of whom have been stated to be leaders of some of these groups.
    Counsel involved in this case contend that, even if this be so, their representation of the law enforcement group does not create a conflict of interest, and they argue that Canons of Professional Ethics, Canon 6 has not been violated. They contend that the worst that could happen would be that they could be representing a member of the law enforcement group as a defendant in a criminal proceeding in which another member of the same group would be the principal witness against the defendant. But, they say, this does not create a conflict since both members of the organization are aware of the situation.
    We need not decide whether such a situation creates a conflict and violates Canon 6. It does create a situation where the public will find it difficult, if not impossible, to believe that some advantage will not accrue to the defendant as a result of this relationship between the attorney and the defendant and his representation of all of the members of the group, including the witness testifying against the defendant.
    While counsel states that his representation is of the organization, rather than the individuals, it is clear that it is the representation of the individuals comprising the group which is the important factor involved. For example, in the letter written by counsel to the president of the organization in question, counsel advises the members, among other things, that they should, upon being approached by any officer, agent or inspector, demand the opportunity to call an attorney; refuse to answer any questions until they have been afforded an opportunity to consult with an attorney and that attorney is present; insist upon the postponement of any proceeding until they can consult with an attorney; and demand to know the nature of the investigation so that the information can be conveyed to counsel. In the letter written by the executive board of the organization to its members, the name of the law firm in question is mentioned and it is stated "A member of the firm will accompany any ... member called for questioning whether he is called as a witness or the subject of an investigation if the member so desires." A copy of counsel's letter to the president, excerpts from which we have just cited, accompanied this letter from the executive board. Certainly, it was not intended that counsel, under these circumstances, would not represent the members of the organization in any situation which arose.

    Canons of Professional Ethics, Canon 35, which permits a lawyer to accept employment from a trade organization, association or group, says that he shall render legal services to the organization as an entity, "but this employment should not include the rendering of legal services to the members of such an organization in respect to their individual affairs."
    It cannot be denied that representation as contemplated by counsel could in many situations give the appearance of impropriety. As the Supreme court said in In re Abrams, 56 N.J. 271, 277 (1970), "Appearances too are a matter of ethical concern, for the public has an interest in the repute of the legal profession."
    Under the Code of Professional Responsibility adopted by the American Bar Association (1969), it is stated in DR 7-104 that in his representation of a client the lawyer shall not communicate with one having an adverse interest. In the example cited above, where one organization member is a defendant and the proposed witness against him is another member of the same organization, the opportunity, if not the temptation, to communicate with the witness - who under the circumstances would have an adverse interest - would be difficult to resist. And, even if resisted, the appearances inevitably would lead to inferences of wrongdoing.
    Much of what we have said in Opinion 113, 90 N.J.L.J. 473 (1967), is apropos here. There, we held with respect to a law enforcement organization (not the same involved in this case) that:

        The real ethical problem is created once the attorney representing the P.B.A. and its members, directly or indirectly, appears in court representing either defendants on complaints made by the police officer, or complainants where the police officer is called as a witness for the complainant. In the minds of some, and outspoken in others, will always be the belief that success in the trial was achieved by unfair help and assistance from the police officer and the P.B.A.

Here, the attorneys regularly represent persons accused of crime in both the state and federal courts. This being so, it is impossible to believe that their representation of an organization composed of law enforcement officers could do other than give rise to the belief in the minds of the general public that the administration of justice was in some way being compromised.
    A lawyer is admonished in Canons of Professional Ethics, Canon 29, "at all times to uphold the honor and to maintain the dignity of the profession and to improve not only the law but the administration of justice." Lawyers should also conduct themselves in such a way as to improve the confidence of the community in the administration of justice and government.
    Counsel has cited for our consideration United Mine Workers v. Illinois Bar Asso., 389 U.S. 217, 19 L. Ed. 2d 426 (1967); Brotherhood of R. Trainmen v. Virginia, 377 U.S. 1, 12 L. Ed. 2d 89 (1964); and N.A.A.C.P. v. Button, 371 U.S. 415, 9 L. Ed. 2d 405 (1963), for the proposition that unions or other organizations have the right to hire attorneys to represent their members. We have considered these cases, but the holdings therein are not, in our opinion, in conflict with the conclusions herein stated.

* * *

This archive is a service of Rutgers University School of Law - Camden