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                                         100 N.J.L.J. 1
                                        January 6, 1977

ADVISORY COMMITTEE ON PROFESSIONAL ETHICS

Appointed by the New Jersey Supreme Court

OPINION 362

Conflict of Interest
Representing Labor Union and Member Too


    This inquiry is from an attorney who represents a labor union and one of its members in arbitration proceedings resulting from a dispute between the member and his employer. The union and the employer have a collective bargaining agreement and, we are informed, "[i]t is the legal obligation of a union to furnish legal representation and to represent its members fairly under Federal Labor Law." While the arbitration proceedings were pending, the member filed an unfair labor practice charge against the union with the National Labor Relations Board alleging that the union had failed to represent him. It now becomes the obligation of the inquiring attorney to represent the union against the charge made by the member he is representing in the arbitration proceedings. May he do this and, if not, may he represent either?
    DR 5-105 requires that a lawyer not accept or continue employment if his independent professional judgment in behalf of a client will be or is likely to be adversely affected by such employment. This rule is particularly cogent if a lawyer undertakes the representation of multiple clients which is permissible if each client consents after full disclosure of the facts. But the potential for conflict is always lurking in multiple representation. In this inquiry the filing of the charge against the union changed the imputable interests of the two clients the attorney was representing to conflicting interests. In effect, if he were to continue with the dual representation, he would be representing each of his previously compatible clients against the other in their conflicting claims.
    Pertinent language summarizing the problem is found in Wise, Legal Ethics 272-3 (2d ed. 1970):
            When a lawyer undertakes to represent two clients he should make it clear to both of them that if a conflict develops, he would prefer to represent neither. At this point the two clients and the lawyer after full disclosure may agree that if such conflict between the two clients develops, he is to represent one of them. Generally speaking, however, the lawyer will be wise not to allow himself to be put in the position of representing either. There is always a likelihood of a charge of revealing confidential information or representing conflicting interests.

            As was said at the onset, "[n]o man can serve two masters." If there is the slightest doubt as to whether or not the acceptance of professional employment will involve a conflict of interest between two clients or with a former client, or a conflict between the interests of any client and that of the attorney, or may require the use of information obtained through the service of another client, the employment should be refused.

    Ethical Consideration 5-15, pertaining to the interests of multiple clients, adopted by the American Bar Association as part of the Code of Professional Responsibility, states:

    A lawyer should never represent in litigation multiple clients with differing interests; and there are few situations in which he would be justified in representing in litigation multiple clients with potentially differing interests. If a lawyer accepted such employment and the interests did become actually differing, he would have to withdraw from employment with likelihood of resulting hardship on the clients; and for this reason it is preferable that he refuse the employment initially.

    In our Opinion 86, 88 N.J.L.J. 773 (1965), we quoted an excerpt from In re Blatt, 42 N.J. 522 (1964), as follows:
    It is self evident that where a member of the bar represents a litigant in a cause, he should not thereafter represent the opposing party in any step in the proceedings in or arising out of the same cause. There is always a possibility, however remote, that confidential information received from the original client may be used to his detriment. Such conduct is plainly and patently unethical, and we find respondent guilty of unethical conduct.

    In this Committee's Opinion 212, 94 N.J.L.J. 553 (1971), where an attorney was retained by both buyer and seller in a real estate
transaction and a controversy arose between the clients, we held:
    It is clear that the attorney may no longer represent either party to the transaction. The possibility of controversy between the clients is one of the principal difficulties with dual representation. An attorney who has acted for a client may not render services professionally against him where to do so might injuriously affect his former client in any matter in which he funereally represented him. See this Committee's Opinion 97, 89 N.J.L.J. 507 (1966). Since both parties were his clients, it would therefore be a violation of Canons of Professional Ethics, Canon 6 for him to continue to represent either.

    Canon 6 of the prior Canons of Professional Ethics referred to in our Opinion 212, supra, is included in DR 5-101 and 105. See also our Opinion 304, 98 N.J.L.J. 449 (1975), dealing with representing multiple parties where we said:
    Clearly there is a conflict under Disciplinary Rules of the Code of Professional Responsibly, DR 5-105(B) which requires the firm forthwith to withdraw from representation of all parties in any matter.

    From all the foregoing we conclude that the attorney making this inquiry cannot ethically continue to represent either the union or the union member in the present controversy.

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