Rutgers School of Law, OAL case ACPE369

100 N.J.L.J. 489
June 2, 1977

ADVISORY COMMITTEE ON PROFESSIONAL ETHICS

Appointed by the New Jersey Supreme Court

OPINION 369

Conflict of Interest
Township Committeeman Suing Board of
Education; Wife, Elected Member of Board

    An attorney who is a township committeeman asks whether he may represent a citizen and her daughter in prosecuting a tort claim against the elected board of education of the township. The inquirer's wife is an elected member of the board, but, we assume, not a member of the bar.
    In our opinion, this proposed representation would be improper. In so deciding we are not unmindful that an elected board of education is autonomous and is not a part of the municipality in which it is located Opinion 41, 87 N.J.L.J. 285 (1964). Nor are we lacking in "appreciation of the emergence and the social and legal recognition of spousal autonomy and retention of separate identities and interests, notwithstanding the sympathetic relationship of an ongoing marriage." In re Gaulkin, 69 N.J. 185, 194 (1976).
    But here neither the autonomy of the board of education nor that of the inquirer's spouse gives sanction to the proposed representation. On the contrary, we think the difficulties inherent in this representation are insurmountable. 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.

    Here, it would be in the inquirer's personal interest to obtain the largest possible judgment or settlement for his clients. It would be in the interest of the board of education and those managing its defense to defeat utterly the claim of the inquirer's clients, or, failing that, to obtain the lowest possible judgment or settlement. In the inquirer's conduct of the proposed litigation a question might arise as to the advisability of deposing his wife or calling her as a witness in behalf of his clients. Or investigation or pretrial discovery might generate a question concerning the advisability of joining the wife individually as a defendant. In the resolution of these and similar problems which might arise it would be too much to expect the inquirer to exercise proper professional judgment in the service of his clients, unaffected by the marital relationship. And, as we said in Opinion 288, 97 N.J.L.J. 766 (1974), "the situation under consideration would inevitably present the appearance of conflict, even if no actual conflict exists." The close relationship of husband and wife would also create the possibility of an inadvertent breach of confidence or an improper receipt of information by the inquirer or his wife. Opinion 346, 99 N.J.L.J. 714 (1976).
    Inherent in the situation presented is the probability of public criticism, whether based in fact or not, of the use of influence for improper purposes. See Opinion 191, 94 N.J.L.J. 33 (1971). We have often said that "an attorney should not only avoid all impropriety, but should likewise avoid the appearance of impropriety." Opinion 346, supra.
    In Kremer v. City of Plainfield, 101 N.J. Super. 346, 352-353 (Law Div. 1968), where an alleged conflict of interest was in issue, the court said with respect to a member of the board of adjustment:
    While the authorities I nave cited apply specifically only to judges, there is no sound reason why a lesser standard should govern the conduct of those acting in a quasi-judicial capacity. The need for unquestionable integrity, objectivity and impartiality is just as great for quasi-judicial personnel as for judges.

The inquirer cannot ethically put his wife in a position where her integrity and her capacity for objectivity and impartiality in connection with the proposed litigation would be impaired or strained.
    The public interest being involved, consent to the proposed representation by all concerned would be ineffective and thus it could not remove the many ethical objections to which this representation is subject. Opinion 346, supra, Opinion 100, 89 N.J.L.J. 696 (1966).
    See also Opinions 237, 95 N.J.L.J. 410 (1972), and 288, supra.

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