99 N.J.L.J. 977
November 4, 1976
Conflict of Interest
Deputy Surrogate Probate
Consultant Advertising Specialty
The inquirer is a deputy surrogate and an attorney of this
State. He requests an opinion as to whether he may insert an
announcement in the Lawyers Diary and Manual that he will act as a
consultant in the field of probate law, but only that field. He
will not act as associate or appear in court on probate matters.
He calls attention to R. 1:15-1(d), which provides that an attorney who is a deputy surrogate in any county shall not practice law in any criminal quasi-criminal or penal matter, whether judicial or administrative in nature, in that county, nor in the probate division of any county court or in any estate or trust matter in any court. He also cites our Opinion 332, 99 N.J.L.J. 496 (1976), in which we stated that it was not improper for a member of the Bar of New Jersey to advertise his availability to act as a consultant to or associate with another attorney in a particular field of law by inserting a notice in the New Jersey Law Journal, a weekly publication, or in the Lawyers Diary and Manual, an annual publication.
Implicit in the request is the assumption by the inquirer that he can, while a deputy surrogate, act as a consultant to other lawyers on probate matters even though he is not associated with them and will not appear in court. He apparently sees no problem in this conduct, but it is our view that such action is impermissible. Although not required to rule on this, we deem it advisable to make a finding concerning it, since we are informed that there are several individuals in this State holding similar offices who are so acting.
It seems to us that the above-cited rule was intended to prohibit any attorney who is a deputy surrogate from engaging in any facet of the probate law while he occupies that office. For him to be a consultant to lawyers who have probate matters in his county, even though he will not appear in court, is to create a situation where there is the obvious appearance of evil.
As the Supreme Court stated in State v. Galati, 64 N.J. 572, 576 (1974), and as we have stated in numerous opinions, in matters of ethics and professional probity, the cause and effect impact on the public consciousness is almost, perhaps quite, as important as the actual fact. Not only must public officers and quasi-public
officers refrain from improper conduct, but they must refrain from anything which gives the appearance of impropriety. See Opinion 320, 98 N.J.L.J. 857 (1975), Opinion 261, 96 N.J.L.J. 1150 (1973), and other opinions.
We have no doubt that R. 1:15-1(d) precludes a deputy surrogate from advising members of the Bar on probate matters. This proposed conduct may also violate DR 8-101, referring to the use by a lawyer of his public position to obtain an advantage. It is a reasonable inference that the inquirer was not consulted as an expert on probate until he became a deputy surrogate. Otherwise, his inquiry would have been whether he could continue to consult with members of the Bar on probate matters, rather than whether he could begin such consultant services. The answer clearly is that he cannot.
The disposition of this question makes it unnecessary to answer the question with respect to the insertion of the notice in the publication referred to. However, advertising of legal specialties under proper circumstances and in approved publications was dealt with in our Opinion 107, 90 N.J.L.J. 245 (1967), and Opinion 108, 90 N.J.L.J. 245 (1967).