97 N.J.L.J. 1973
February 28, 1974
Disbarred Former Partner -
Husband of Partner -
As Client - Referring Cases
An attorney has requested an opinion based upon the following
circumstances. He is a member of a firm which has heretofore
consisted of six partners, employing three associates. A former
partner who is the husband of a present partner has been disbarred
by the Supreme Court of New Jersey. The disbarred attorney's wife
intends to continue the practice of law as a member of the
partnership. The disbarred attorney intends to pursue various
business interests, which require the services of an attorney in
both the private sector, such as the drafting of contracts; and
activity in the public sector, such as applications to,
negotiations with and hearings before State and municipal
governmental and administrative bodies. The disbarred attorney will
not be asked to recommend or be paid for recommending, employment
of his former partnership by any person with whom he may have
business or personal contacts. Nevertheless, it is expected that,
from time to time, those contacts will make use of the services of
the disbarred lawyer's former firm as a matter of their own
The inquirer asks: May the members of the firm maintain their partnership association with the disbarred lawyer's wife, who practices under her married name? May the firm name continue to contain the surname of the disbarred attorney, in order to identify the present interest of his wife? May the firm as a whole, or the
disbarred lawyer's wife as a member of the firm, represent any of the following persons if, in each case, the fees charged will constitute income to the firm in which the disbarred attorney's wife will share: the disbarred attorney, the corporations and partnerships of which the disbarred attorney is a shareholder or partner, and persons who may be introduced in the future to the firm as the result of the disbarred attorney's activities?
In reply to the first question, of course the firm may under normal circumstances maintain a partnership association with the disbarred lawyer's wife.
The answer to the second question depends on whether the purpose or effect of the wife's name is to mislead the public as to the continuing presence of the disbarred partner. DR 2-102(B) states:
A lawyer in private practice shall not practice under a trade name, a name that is misleading as to the identity of the lawyer or lawyers practicing under such name, or a firm name continuing names other than those of one or more of the lawyers in the firm... .
Accordingly, it is first required that the wife of the former partner be a partner in fact and not a partner for convenience. Secondly, if she is a partner in fact, the letterhead and all other permissible listings of the firm name must clearly delineate her as the partner in fact named in he firm name. New Jersey Advisory Committee on Professional Ethics, Opinion 215, 94 N.J.L.J.600 (1971). If the effect of the use of the name in the firm name, however, is to mislead the public into believing that the disbarred attorney continues to be associated with the firm, it is improper. It is not within the province of this Committee to make a factual finding on this point in this opinion.
As to the third question, we believe it valid not be inappropriate for the firm to represent the disbarred attorney, or corporations or partnerships involving the disbarred attorney provided great care is taken to avoid any impression of office sharing or any continuing relationship of the firm with the disbarred attorney other than as attorney client. In N.J. Advisory Committee on Professional Ethics, Opinion 213, 94 N.J.L.J. 585 (1971), we reviewed an inquiry covering an association with a disbarred attorney and held there that creation of an impression of sharing an office with a disbarred attorney was prohibited. The subject inquiry fails to state where the disbarred attorney will maintain offices to conduct his proposed activities and this has an important though not dispositive bearing on the propriety of the proposed arrangement.
In our opinion, however, the firm should not represent clients introduced to the firm by the disbarred partner. In N.J. Advisory Committee on Professional Ethics, Opinion 17, 87 N.J.L.J. 113 (1964), we held that a firm of attorneys could not accept the representation of clients referred by an intermediary corporation whose principal was the spouse of a partner in the firm. We there cited old Canons of Professional Ethics, Canon 27 which declared it improper for an attorney "to procure business by indirection through touters of any kind" and noted that "the circumstances that the attorney here is closely related to the principals [referring the work] would seem to furnish a further instance of unprofessional conduct, since it might operate to lessen the appearance of independence of the attorney from such principal." This conclusion of impropriety is reinforced where the referring
party is a disbarred attorney whose wife would share in fees from cases referred.
In Informal Opinion 1079 of the Standing Committee on Professional Ethics of the American Bar Association (1968) it was held to be improper for an attorney to accept referrals from a suspended attorney. See also Opinion 117 of the New York County Lawyers Association(1917), holding that an attorney should not cooperate in a plan of promotion of his practice by his father. Accordingly, we hold that there is nothing improper or unethical about representing the disbarred attorney in his personal and business affairs provided that the disbarred attorney maintains a bona fide business office separate from the inquiring law firm and the presence of the disbarred attorney on the firm's premises is infrequent and limited to those occasions required for the transaction of his personal legal business actually being performed. We believe that it would not accord with the best standards and traditions of the legal profession if the firm were to accept references from the disbarred attorney whose wife is currently a partner in the firm, and this would be more emphatically the case where the firm name includes the disbarred attorney's name - even though it is also that of an existing partner.