138 N.J.L.J. 90
September 5, 1994
3 N.J.L. 1736
September 5, 1994
Conflict of Interest: Representing a Private
Client in a Real Estate Tax Appeal Before a
Board of Taxation of Which His Father, a
Non-Lawyer, is a Member
The inquirer asks whether he, or other members of his firm,
may represent a client in a real estate tax appeal before a board
of taxation of which his father, who is not a lawyer, is a member.
The inquirer states that in the event he accepts the representation
of the client, his father would recuse himself.
As the inquirer correctly points out, there is no Rule of Professional Conduct which expressly addresses the propriety of an attorney appearing before a judicial, quasi-judicial or administrative body on which the attorney's parent, child or other close relative serves. The prohibition of RPC 1.8(i) only addresses adversarial relationships between related lawyers:
A lawyer related to another lawyer as parent, child, sibling or spouse shall not represent a client in a representation directly adverse to a person who the lawyer knows is represented by the other lawyer except upon consent by the client after consultation regarding the relationship.
Thus, in adversarial situations, a parent and child are not prohibited from representing divergent or conflicting interests, but each lawyer would be required to disclose the relationship and to obtain the consent of the client to the representation. Still, RPC 1.8(i) does not expressly address the situation posited by the present inquiry where an attorney would appear before a relative.
Since no rule expressly covers the situation, at least from the perspective of the inquiring attorney, the issue is whether such an appearance of impropriety exists that representation must be declined. See, for example, RPC 1.7(c)(2) which provides:
(c) This rule shall not alter the effect of case law or ethics opinions to the effect
(2) in certain cases or situations creating an appearance of impropriety rather than an actual conflict, multiple representation is not permissible, that is, in those situations in which an ordinary knowledgeable citizen acquainted with the facts would conclude that the multiple representation poses substantial risk of disservice to either the public interest or the interest of one of the clients.
An "appearance of impropriety" analysis is, therefore, still relevant. Matter of Opinion No. 653, 132 N.J. 124, 130 (1993).
Although the Committee has not previously considered the precise facts raised by the present inquiry, it has addressed analogous situations. In those situations, the Committee has generally found that in the absence of actual misconduct, it is not unethical for an attorney to appear before a judicial, quasi- judicial or administrative body on which a relative or one otherwise identified with the attorney sits. Most recently, in Opinion 622, 122 N.J.L.J. 1420 (1988), the inquirer asked whether he was prohibited from appearing before township bodies because, among other things, his father was mayor of the township committee. The Committee, quoting from Opinion 360, 99 N.J.L.J. 1166 (1976), concluded that his father's position did not prohibit him from appearing before municipal agencies:
...when an attorney's parent is the appointing power or participates in appointments, that relationship alone does not call for an inference of improper influence, and the attorney, or his associates, may appear before the public boards whose members are appointed by his parent.
Neither Opinion 622, supra, 122 N.J.L.J. 1420, nor Opinion 360, supra, 99 N.J.L.J. 1166, are directly on point because the attorneys were not appearing before boards on which their fathers served, but rather before boards appointed by the fathers. Nevertheless, the rationale or dictum of Opinion 360 is more expansive and suggests the answer to the present inquiry:
We have always held that an attorney need not
refuse employment because he may have to
present his case before a relative. There, it
is incumbent upon the relative to remove
himself from the deliberations. (citations
That rationale has frequently been recited by the Committee. See, for example, Opinion 363, 100 N.J.L.J. 10 (1977) (holding that an attorney may ethically appear before a planning board on behalf of a client even though a voting member of the board is either a past or present client of the attorney); Opinion 171, 93 N.J.L.J. 19 (1970) (concluding that no appearance of impropriety will be presumed when an attorney represents clients before the Law Division (Criminal) or the Juvenile and Domestic Relations Court when the attorney's mother is employed as secretary to the chief probation officer for the county); and Opinion 136, 91 N.J.L.J. 749 (1968) (finding no reason why an attorney could not represent a planning board on which his uncle was a member and chairman of the board). Each of the foregoing circumstances is, of course, distinguishable from and arguably more attenuated than the present inquiry; however, the approach consistently articulated is that the onus to avoid any appearance of impropriety is placed upon the person hearing the case rather than upon the attorney who may have occasion to consider whether he or she may appear before the particular tribunal.
That same approach was applied in Kremer v. City of Plainfield, 101 N.J. Super. 346 (1968). In that case, the court concluded that the reasonableness of the city council in approving the recommendation of the board of adjustment to grant a variance could not be seriously questioned. Yet, the court set aside the variance because one of the members of the board of adjustment was the uncle of the attorney for the applicant. Compare with R. 1:12- 1(b), which requires judges of any court to disqualify themselves on their own motions and not sit in any matters if they are by blood or marriage the first cousin or are more closely related to any attorney in the action. The rule also specifically extends the proscription to the partners, employers, employees or office associates of such attorneys, except where the Chief Justice for good cause permits.
In the circumstances of the present matter, the inquirer's father is not an attorney and, therefore, is beyond the reach of the Rules of Professional Conduct. He has, nevertheless, determined to shun the appearance of impropriety by agreeing to recuse himself on matters handled by his son. Accepting then that the father will recuse himself on any applications made by the son or his firm, the question seems to be controlled by the prior opinions of the Committee cited above and no appearance of impropriety would appear to arise. In the absence of such a recusal, however, an appearance of impropriety seems manifest.