Rutgers School of Law, OAL case ACPE509

                                         111 N.J.L.J. 16
                                        January 6, 1983

ADVISORY COMMITTEE ON PROFESSIONAL ETHICS

Appointed by the New Jersey Supreme Court

OPINION 509

Conflict of Interest
Representing Client and Client's
Prospective Employee Before Agency

    Question: Where the law requires an applicant for employment to be approved by an agency charged with overseeing and regulating the employing entity, is it proper for the applicant to be represented before that agency by counsel retained by the prospective employer?
    This question arises from the concern of an enterprise to see that its qualifications to continue in business be maintained free from the limitations engendered by employing persons whose past activities may disqualify both employee and employer under applicable law and regulations.
    The prospective employee in turn has a concern that in presenting the required information to the scrutiny of a Regulatory Board, his representative should protect him from disclosures which, though irrelevant to the regulatory investigation, if disclosed to the employer via their common attorney may be of sufficient concern as to render the employment precarious and subject to possible harassment.
    The Disciplinary Rules at DR 5-105 entitle a client to independent counsel whose professional judgment is not clouded by his professional duties to another client. Further, a client is

entitled to have his "confidences" and "secrets" preserved from unauthorized disclosure. DR 4-101.
When an employer's attorney undertakes to present an employee's case for licensing with the consent of each client, he must be able to conclude that he can adequately meet the requirements of DR 5-105(C) after full disclosure to the two clients of the facts and of the possible effect of such representation on the exercise of his independent professional judgment on behalf of each. This follows necessarily from the dual nature of his representation. Even though his immediate client before the agency may be the employee, his employer-client is also subject to the same regulatory agency. Hence, the latter client's interests will be of significant, if not paramount, importance in the attorney's exercise of professional judgment during the preparation and presentation of the employee's case before the agency.
It is our opinion that unless DR 5-105(C) can be complied with, the employer's counsel should not represent an employee of that client before a regulatory body to which each client is answerable. See our Opinion 362, 100 N.J.L.J. 1 (1977).

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