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                                             99 N.J.L.J. 588
                                            July 1, 1976

ADVISORY COMMITTEE ON PROFESSIONAL ETHICS

Appointed by the New Jersey Supreme Court

OPINION 336

Conflict of Interest
Attorney Representing his Title
Searcher under Investigation;
Claim of Privilege for Attorney

    The Committee has received the following inquiry from an attorney who employed a layman who possessed unique knowledge in the area of searching titles, protracting and locating tracts of land in wild and unimproved areas of the State. These skills were used in connection with various land transactions for clients of the attorney. In some of the transactions, the attorney, members of his family, or the layman had substantial minority interests.
    An unnamed state agency has initiated an investigation of land transactions in southern New Jersey and has indicated an intention to interview the layman. The inquirer agreed to represent the layman, understanding that the targets of the investigation were non clients. Later, the inquirer was informed that certain transactions in which he or some member of his family was involved would also be subjects of the investigation.
    Under these circumstances, the attorney asks:
    1.    May he continue to represent the title searcher?

    2.    If the answer is no, would it be unethical for him to attend the interview to assert the attorney client privilege?

    As to the first question, the Committee finds that it would be improper for the attorney to represent the layman. If the inquirer is himself a subject of the investigation, it would be a clear conflict of interest for him to represent a person who may eventually be called by the State to be a witness against him DR 5- 101 (A) 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.

Under the former Canons of Professional Ethics, it was said that the full disclosure and consent exception does not sanction representation of conflicting interest in every case where consent is given, but merely forbids it except in those cases. See Drinker, Legal Ethics 120 (1953). Consent generally is found to be unavailable when public interest is involved. Drinker, supra, 120. The public interest is clearly involved where there is a state investigation. Thus, we conclude that the inquirer may not represent the layman because of a probable conflict of interest regardless of full disclosure and consent.
    We are of the opinion that the second question presents a legal rather than an ethical problem. Therefore, having concluded that the inquirer may not ethically represent the layman as his attorney, we leave the determination of the assertion of attorney client privilege (N.J.S. 2A 84A-20, Rule of Evidence 26) to the appropriate court.
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