97 N.J.L.J. 121
February 21, 1974
OPINION 278
Conflict of Interest
Attorney Under Investigation
Representing Prospective Witnesses
An attorney is the subject of a grand jury investigation which
centers around certain conduct in his practice of law. Some of his
former employees and clients have been subpoenaed to appear as
witnesses. After being advised of their right to be represented by
counsel, they contacted the attorney under investigation.
We are asked the following questions:
1. Is he permitted to represent them?
2. If there is a conflict, is he permitted to
recommend a particular lawyer?
3. If he is permitted to recommend a particular
lawyer, is he permitted to pay that attorney's
fee?
4. Is the attorney who is recommended permitted
to communicate information which he learns in
the representation of the employee or the
client to the attorney who is paying the fee?
The present inquiry involves a conflict which is personal to
the attorney in question, and as such threatens one of the very
basic precepts of the attorney-client relationship - the ability to
serve the client's interest with unquestioned fidelity. The
witnesses' possible self-interest in cooperating fully, honestly,
and openly before the grand jury conflicts directly with the not
too unnatural desire of the attorney in such circumstances to avoid
the presentation of any evidence which would be embarrassing.
The Code of Professional Responsibility, DR 5-101(A)
contemplates such conflict and provides:
Except with the consent of his client after full
disclosure, a lawyer shall not accept employment if the
exercise of his professional judgment on behalf of his
client will be or reasonably may be affected by his own
financial, business, property, or personal interests.
The ethical considerations for DR 5-101(A) are found in Canon
5 of the Code of Professional Responsibility of the American Bar
Association which states, EC 5-1:
The professional judgment of a lawyer shall be
exercised, within the bounds of the law, solely for the
benefit of his client and free of compromising influences
and loyalties. Neither his personal interests, the
interests of other clients, nor the desires of third
persons should be permitted to dilute his loyalty to his
client.
The Code of Professional Responsibility, EC 5-2, continues as
follows:
A lawyer should not accept proffered employment if
his personal interest or desires will, or there is a
reasonable probability that they will, affect adversely
the advice to be given or services to be rendered the
prospective client.
It is clear from the foregoing that the attorney in question
cannot possibly represent prospective witnesses against him,
whether they be former employees, clients, or others possessing
information relevant to the investigation. See Drinker, Legal
Ethics 120 (1953). Such representation would do violence to the
entire concept of the attorney client relationship. Furthermore,
the consent of such witnesses would not remove the ethical
objections. The appearance of impropriety would certainly be
present were such a representation permitted. See A.B.A. Comm. on
Professional Ethics and Grievances, Opinion 16 (1929).
In commenting upon former Canon 6 of the Canons of
Professional Ethics (predecessor to DR 5-101(A), supra), Drinker in
his Legal Ethics (1953) notes at p. 105:
even where all parties agree, the appearance
of a lawyer on both sides of the same
controversy, particularly in cases of some
notoriety, will often give an impression to
the public which is most unfortunate for the
reputation of the bar, and which of itself
should be decisive.
Aside from the appearance of impropriety, the matter has the
potential for adversely affecting the administration of justice.
Thus such representation directly involves the public interest, and
is particularly improper and undesirable. N.J. Advisory Committee
on Professional Ethics, Opinion 4, 86 N.J.L.J. 357 (1963). The
Supreme Court of New Jersey in Schear v. Elizabeth, 41 N.J. 321,
329 (1964), quoting Ahto v. Weaver, 39 N.J. 418, 431 (1963), noted
that such representation is absolutely barred where a conflict
affecting the public interest is involved. In the matter subjudice
the conflicting interest the attorney would accommodate is his own.
Therefore, the rationale for the rule is even more meaningful.
Once it has been established that the conflict between the
lawyer and the prospective witnesses against him cannot be cured by
a disclosure of the conflict and the consent of such witnesses, the
lawyer's duties and responsibilities are fairly clear. In this
regard, DR 7-104(A) of the Code of Professional Responsibility
states:
During the course of his representation of a
client a lawyer shall not:
(2) Give advice to a person who is not
represented by a lawyer, other than
advice to secure counsel if the
interests of such person are or have
a reasonable possibility of being in
conflict with the interests of his
client.
In interpreting the nature and extent of the advice to secure
counsel which may be given by a lawyer when a potential for
conflict exists, the A.B.A. Comm. on Professional Ethics and
Grievances observed in Opinion 245 (1942) that even to recommend
several attorneys would raise a suspicion of collusion which should
be avoided. Cf. In re Abrams, 56 N.J. 271, 277 (1970).
Accordingly, the giving of advice to retain independent
counsel should not go beyond bare recommendation to acquire
representation. Such a limitation is particularly important where
the conflict of interest is personal to the attorney. N.J. Advisory
Committee on Professional Ethics, Opinion 7, 86 N.J.L.J. 405
(1963). In such a factual setting not only would there be an
appearance of impropriety, but there would exist a very real and
direct conflict of interest were the attorney under investigation
to retain any control or interest, financial or otherwise, in the
selection of counsel. Such a practice would not only do a grave
disservice to the former employees and clients, but would seriously
undermine the broader goals of promoting confidence in our judicial
system and in the legal profession.