Rutgers School of Law, OAL case acp324

99 N.J.L.J. 289
April 8, 1976

ADVISORY COMMITTEE ON PROFESSIONAL ETHICS

Appointed by the New Jersey Supreme Court

OPINION 324

Borough Attorney's Disclosure of
Attorney-Mayor's Misconduct DR 1-103

    A borough attorney casually learned that the mayor of the borough was requesting and taking fees for officiating at marriages under authority given by N.J.S.A. 37:1-13. The mayor, although a member of the New Jersey Bar, was not practicing law. The inquirer, then employed as assistant to the borough attorney, researched the mayor's authority to take such fees, and with the borough attorney concluded that under N.J.S. 2A:105-1 the mayor may have been guilty of a misdemeanor for taking unauthorized fees. The borough attorney reviewed his research with the mayor and persuaded him to stop taking the fees.
    The inquirer then left the borough attorney's employ, and now he asks whether his knowledge of the mayor's acts was privileged and, if not, whether the borough attorney or he should have reported the mayor's allegedly illegal conduct to the borough council and to the county ethics committee. The issue of reporting
to the borough council is not within our jurisdiction.
    We shall consider an attorney's duty under DR 1-103 to disclose possible "misconduct" of another attorney in the performance of the latter's authority as mayor to officiate at marriages under N.J.S.A. 37:1-13. DR 1-103 requires an attorney to report to the appropriate ethics committee conduct which adversely reflects upon another attorney's fitness to practice law, except where the information is privileged. The acts of misconduct are designed in DR 1-102.
    The borough attorney acquired knowledge of the mayor's acts otherwise than from the mayor; and, although he confronted the mayor with this knowledge and the latter confirmed it, the matter does not appear to be privileged under N.J.S. 2A:84A-20. In re Stein, 1 N.J. 288 (1949); 97 C.J.S 800 Witnesses §283, d.
    We do not pass upon the question of whether the acts constitute a misdemeanor under N.J.S. 2A:105-1. See In re Del Mauro, 57 N.J. 317 (1970), and State v. Savoie, 128 N.J. Super 329 (App. Div. 1974), reversed 67 N.J. 439 (1975).
    Since the inquirer's information was not privileged, there was a duty under DR 1-103 to report misconduct designated by DR 1-102.
    We are aware that public officials authorized to perform marriages, under N.J.S.A. 37:1-13 customarily have accepted fees. By Municipal Court Bulletin Letter #115 (October 7, 1965), circulated only to municipal courts, the judges of such courts were specifically directed to cease the practice. And see In re Del Mauro, supra, where the history of this practice by judges is noted. Yet in that case, the court specifically refrained from considering the question of a violation of N.J.S. 2A:105-1.

In this inquiry there is no report that the mayor knew that his demand and acceptance of fees for marriage ceremonies might constitute misdemeanors under N.J.S. 2A:105-1. When the borough attorney called the mayor's attention to it, he ceased doing so. The criterion we must apply is "unfitness to practice law." Note that in the Code of Professional Responsibility of the American Bar Association (1969), item 3 of DR 1-102 refers to "illegal conduct involving moral turpitude." Under common law "moral turpitude" encompassed only those offenses which clearly affect fitness to practice law. See Note 4, Wise, Legal Ethics 18 (2d ed 1970) and Note 13, Code of Professional Responsibility, supra, at 11. Under these circumstances the borough attorney and the inquirer could reasonably conclude that the mayor's conduct did not adversely reflect upon his fitness to practice law Compare ABA Comm. on Professional Ethics and Grievances, Opinion 216 (1941).
For the foregoing reasons this Committee finds that under DR 1-103 the inquirer and the borough attorney whom he assisted were not bound to report their information to the county ethics committee.

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