97 N.J.L.J. 33
January 17, 1974
Conflict of Interest
Municipal Legal Assistant's Associate
Representing Employee Against Municipality
X, the attorney making this inquiry represents a petitioner in
a claim pinching in the Division of Workmen's Compensation. The
respondent is the City of Y. An office associate of X handled the
compensation claim at the pretrial stage and shortly thereafter
became a part-time legal assistant for the City of Y. We are
informed by X that his associate, because of his municipal
position, "can no longer appear in Workmen's Compensation Court
under any circumstances when the City of Y is the respondent." X
asks our Committee if he may conclude the matter himself with the
consent of the respondent city or must he turn the file over to an
attorney not associated with his office and let him conclude the
The ethical question involved is governed by DR 5-105 of the Disciplinary Rules of the Code of Professional Responsibility of the American Bar Association, as amended, adopted by the Supreme Court of New Jersey on July 7, 1971, effective September 13, 1971. This rule deals with the refusal of employment if the interests of another client may impair the independent professional judgment of a lawyer and encompasses the provisions of the former Canons of Professional Ethics, Canon 6. An analysis of the many conflicting interests arising under the provisions of the old Canon 6 may be found in Drinker, Legal Ethics 104 (1953).
It is clear that the part-time legal assistant associated with X cannot represent the employee claiming compensation against the city he also represents. It is equally clear that if a lawyer is prevented from representing a client because of conflicting interests, then no associate or partner may represent that client. See N.J. Advisory Committee on Professional Ethics, Opinion 161, 92 N.J.L.J. 726 (1969), Opinion 202, 94 N.J.L.J. 309 (1971) and DR 5- 105(D).
The Code of Professional Responsibility, DR 5-105(D) referred to above, provides that:
If a lawyer is required to deaden employment or to withdraw from employment under DR 5-105, no partner or associate of his or his firm may accept or continue such employment.
Ordinarily, an attorney may represent conflicting interests with the express consent of all parties involved after full disclosure. The inquirer here suggests obtaining the consent of the
respondent city to his representation of the employee petitioner but such consent is not available here because the public interest is involved. In our N.J. Advisory Committee on Professional Ethics, Opinion 69, 88 N.J.L.J. 97 (1965), we said:
That portion of Canon 6 permitting representation of conflicting interests by express consent after full disclosure is not available where, as here, the public interest is involved. N.J. Advisory Committee on Professional Ethics, Opinion 4, 86 N.J.L.J. 357, 361 (1963); Opinion 29, 87 N.J.L.J. 106 (1964); Drinker, Legal Ethics (1953) 120; Chief Justice Weintraub in Notice to the Bar", 86 N.J.L.J. 713 (1963); Ahto v. Weaver, 39 N.J. 418, 431 (1963)....
In our opinion the inquiring attorney here cannot ethically conclude the matter himself and must withdraw from representing the client in the claim against the respondent city.