Rutgers School of Law, OAL case acp426

103 N.J.L.J. 495
May 24, 1979

ADVISORY COMMITTEE ON PROFESSIONAL ETHICS

Appointed by the New Jersey Supreme Court

OPINION 426

Conflict of Interest
Defending Indicated Defendant
After Advising Witnesses

Defense counsel for a criminal defendant inquires whether he may represent the defendant after counseling persons subpoenaed to appear before grand juries which investigated the crime for which the defendant was ultimately indicated. Witness 1 was subpoenaed and testified before Grand Jury 1 being represented by the inquiring attorney. No indictment was returned. Witness 2, advised by the inquirer, refused to answer questions to Grand Jury 2. Shortly thereafter, Grand Jury 2 indicted the defendant, who engaged the inquirer as defense counsel. Witness 2 had previously given the police an oral statement, and after indictment the inquirer withdrew from any representation of witnesses 1 and 2, and witness 2 testified before Grand Jury 2 suffering a "lapse of memory." Additionally, counsel represents in a civil suit a witness 3, who testified before Grand Jury 1.
The inquiry arises as a result of the State's moving to disqualify the inquirer from representing the criminal defendant. The inquirer states that he withdrew from representation of the criminal defendant and the criminal proceeding is no longer pending because the indictment has been dismissed for lack of evidence. The inquirer requests our opinion for future guidance.

    This Committee will assume full disclosure to the parties and further that the oral statement of witness 2 was somehow inculpatory of the defendant. Our Opinion 278, 97 N.J.L.J. 121 (1974), while referring to an attorney under grand jury investigation, is of particular application. There, as here, the ability of the inquirer to serve the client's interest with unquestioned fidelity was threatened. The witness' self-interest in cooperating fully, honestly and openly before the grand jury or testifying for the State, conflicts directly with the not too unnatural desire of the attorney in such circumstances to avoid the presentation of any evidence that would embarrass his present defendant.
        Opinion 278 provides as follows:
            The ethical considerations for DR 5- 101(A) are found in Canon 5 of the Code of Professional Responsibility of the American Bar Association which states, EC5-1:

                The professional judgment of a lawyer shall be exercised, within the bounds of the law, solely for the benefit of his client and free of compromising influences and loyalties. Neither his personal interest, the interests of other clients, nor the desire of third persons should be permitted to dilute his loyalty to his client.(Emphasis added)

    Neither the informed consent of the clients, nor the disassociation of the inquirer from the potential witnesses against his defendant removes the ethical objections. The appearance of impropriety would certainly be present were such a representation permitted. See ABA Comm. on Professional Ethics and Grievances, Opinion 16 (1929). Here, the appearance of the lawyer representing the defendant and a potential witness against the defendant in a homicide makes the comments of Opinion 278 particularly applicable.
            In commenting upon former Canon 6 of the Canons of Professional Ethics (predecessor to DR 5-101(A), supra), Drinker in his Legal Ethics (1953) notes at p. 105:

                'even where all parties agree, the appearance of a lawyer on both sides of the same controversy, particularly in cases of some notoriety, will often give an impression to the public which is most unfortunate for the reputation of the bar, and which of itself should be decisive.'

            Aside from the appearance of impropriety, the matter has the potential for adversely affecting the administration of justice. Thus, such representation directly involves the public interest, and is particularly improper and undesirable. N.J. Advisory Committee on Professional Ethics, Opinion 4, 86 N.J.L.J. 357 (1963). The Supreme Court of New Jersey in Schear v. Elizabeth, 41 N.J. 321, 329 (1964) quoting Ahto v. Weaver) 39 N.J. 418, 431 (1963), noted that such representation is absolutely barred where a conflict affecting the public interest is involved.

Here, the representation of the defendant clearly falls within the bar of Opinion 278. Opinion 194, 94 N.J.L.J. 44 (1971), is inapposite. Not only was there a remoteness of representation, but the following comments from Opinion 194 clearly indicate the direction of the opinion:

that a lawyer should never accept a retainer where his position may be adverse to that of a former client, without taking extreme care to make certain that the new matter is one which will not affect in any way any confidential information that he may have obtained in his former representation of the insolvent insurance company in the defense of negligence claims, the inquirer says that he obtained no confidential information with respect to the inner workings of that company, nor any information relating to the alleged S.E.C. or mail fraud violations. (Emphasis added)

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