99 N.J.L.J. 714
August 12, 1976
Conflict of Interest
Husband, School Board Attorney, Labor
Negotiator; Wife, Non-Tenure Teacher
We have been asked whether it is unethical for a board of
education attorney to serve as labor negotiator for the board when
his wife is employed by it as a non-tenure teacher on a full-time
basis. We are informed that the personnel committee and other board
members sit with the attorney at all negotiation sessions with the
bargaining agents of the teachers' association; that the board of
education directs the attorney's actions with reference to
negotiations and has final approval on all decisions and agreements
reached with the teachers' association; and that the attorney has
no independent authority to resolve any issues on his own except
through board instruction.
DR 5-101(A) requires a lawyer to refuse employment if his personal interests may impair his independent professional judgment. The rule as follows:
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.
We believe that the financial and personal interests of the attorney's wife in the outcome of the negotiations would impair or tend to impair his independent professional judgment. We also believe that the close relationship of husband and wife would create the possibility of an inadvertent breach of confidence or receipt of information by the attorney's wife that might be adverse to the interests of the board. Assuming, however, that the inquirer would neither experience impairment of Judgment nor breach a confidence nor impart information adverse to his client, the appearance of impropriety is obvious. We have frequently said an attorney should not only avoid all impropriety, but should likewise avoid the appearance of impropriety. The ABA Comm. on Professional Ethics, Grievances, Opinion 49 (1931 used to following language to express the principle involved:
If the profession is to occupy that position in public esteem which will enable it to be of the greatest usefulness, it must avoid not only all evil, but must likewise avoid the appearance of evil.
See also N.J. Advisory Committee on Professional Ethics,
Opinions 168, 93 N.J.L.J. 7 (1970), and 170, 93 N.J.L.J. 18 (1970).
The presence of the personnel committee and other board members at negotiating sessions and the fact that the attorney's actions are subject to direction, approval and instruction from the board do not alter the application of the ethical principles involved. And the consent of the board to such representation, after full disclosure, is not permissible because the public interest is involved. In N.J. Advisory Committee on Professional Ethics, Opinion 100, 89 N.J.L.J. 696 (1966), we said:
In such circumstances the public interest is involved and an attorney may not represent conflicting interests even with the consent of all concerned after full disclosure. Drinker, Legal Ethics 120 (1953); Chief Justice Weintraub in "Notice to the Bar," 86 N.J.L.J. 713 (1963); Ahto v. Weaver, 39 NJ. 418, 431 (1963); 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); Opinion 54, 87 N.J.L.J. 689 (1964); Opinion 65, 87 N.J.L.J. 810 (1964); Opinion 67, 88 N.J.L.J. 81 (1965); and Opinion 69, 88 N.J.L.J. 97 (1965). See also N.J. Advisory Committee on Professional Ethics, Opinion 277, 97 N.J.L.J. 33 (1974).
The conflict, or potential conflict, of interest created by the husband-wife relationship has been considered in several of our prior opinions. In Opinion 237, 95 N.J.L.J. 410 (1972), we held
that the representation of defendants in criminal matters in a county in which one's wife is assistant prosecutor would be improper in that the relationship of the attorneys would place an undue, and perhaps impossible, burden upon each attorney's duty to guard the confidences of his clients.
questions would also arise under DR 5-101
requiring an attorney to refuse employment
where his personal interests may impair his
In Opinion 288, 97 N.J.L.J. 766 (1974), we held that the wife of a Deputy Attorney General assigned to the Division of Criminal Justice should not be permitted to practice criminal defense law
in New Jerseys while her husband was so assigned. We believed there was the risk of "disclosure of clients' confidences," that "the appearance of conflict" was present, and "the public would suspect that the attorney would receive preferential treatment and might use her influence for private gain." In Opinion 312, 98 N.J.L.J. 646 (1975), we held that it would be unethical for an attorney to represent any party to a real estate transaction where his wife had been the listing or selling agent. We said
there is all inherent conflict present since it is to the wife's interest to have the transaction completed and the broker's commission paid ... and circumstances might arise that would persuade the attorney that the transaction should not be completed.
It is our opinion that under the circumstances presented it would be improper for the inquiring attorney to serve as labor negotiator.