138 N.J.L.J. 1186
November 21, 1994
3 N.J.L. 2246
November 21, 1994
Conflict of Interest: Representation in a
Personal Injury Matter of an Attorney who
is an Adversary in an Unrelated Contract Case
This inquiry concerns the ethical propriety of the inquirer's representation of an attorney in a personal injury matter while the client/attorney is the inquirer's adversary in an unrelated contract case. The inquirer states that both parties in the contract case have consented to the representation of the adversary counsel after full disclosure of the circumstances and after consultation.
The general rule for conflicts of interest that governs this inquiry, Rule of Professional Conduct (RPC) 1.7, provides:
(a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client unless:
(1) the lawyer reasonably believes that representation will not adversely affect the relationship with the other client; and
(2) each client consents after a full disclosure of the circumstances and consultation with the client, except that a public entity cannot consent to any such representation.
(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless:
(1) the lawyer reasonably believes the representation will not be adversely affected; and
(2) the client consents after a full disclosure of the circumstances and consultation with the client, except that a public entity cannot consent to any such representation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.
(c) This rule shall not alter the effect of case law or ethics opinions to the effect that:
(1) in certain cases or categories of cases involving conflicts or apparent conflicts, consent to continued representation is immaterial, and
(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.
The inquirer contends that RPC 1.7(b) governs this matter, and that representation of the inquirer's client in the contract litigation will not be influenced or adversely affected by the inquirer's representation of opposing counsel in an unrelated matter. Moreover, the inquirer proffers that RPC 1.7(c) is inapplicable to the situation at hand because "[t]his is not the type of case involving conflicts or apparent conflicts in which consent is immaterial" and "this case is not one which creates an appearance of impropriety."
This Committee has not previously addressed the inquirer's question, i.e., whether an attorney may represent an opposing attorney in a matter unrelated to the matter in which the attorneys are adversaries. Had we agreed with the inquirer and applied RPC 1.7(b) when analyzing the proposed representation, we would have concurred that the representation would have been permitted.See footnote 1 1 However, we conclude that this inquiry should be analyzed under RPC 1.7(c)(2), which pertains to situations creating an "appearance of impropriety." Mindful that the New Jersey Supreme Court "has had a long history of requiring attorneys to avoid even the appearance of impropriety," In re Petition for Review of Opinion No. 569, 103 N.J. 325, 329 (1986), we embark on this analysis with the understanding that "[t]he 'appearance' doctrine is intended not to prevent any actual conflicts of interest but to bolster the public's confidence in the integrity of the legal profession." Id. at 330; see also In re Opinion 415, 81 N.J. 318, 323 (1979) ("the appearance doctrine is intended to instill public confidence in the integrity of the legal profession."). That principle was well stated in State v. Rizzo, 69 N.J. 28, 30 (1975):
[A] lawyer must avoid even the appearance of impropriety, DR9-101, to the end that the image of disinterested justice is not impoverished or tainted. Thus it is that sometimes an attorney, guiltless in any actual sense, nevertheless is required to stand aside for the sake of public confidence in the probity of the administration of justice.
See also State v. Galati, 64 N.J. 572, 576 (1974) ("Thus we must notice that in matters of ethics and professional probity, the cause and effect impact upon the public consciousness is almost, perhaps quite, as important as the actual fact.").
"[T]he 'appearance' of impropriety must be something more than a fanciful possibility. It must have some reasonable basis." Higgins v. Advisory Comm. on Professional Ethics, 73 N.J. 123, 129 (1977). Moreover, the Supreme Court has directed that, "[w]hether an appearance of impropriety exists is not to be determined in a vacuum." In re Opinion 415, supra, 81 N.J. at 325. Rather, "It is ... the viewpoint of the public from which this Court has chosen to judge whether particular conduct would constitute the appearance of impropriety. 'We must view the conduct as an informed and concerned private citizen and judge whether the reputation of the Bar would be lowered if the conduct were permitted.'" In re Opinion 569, supra, 103 N.J. at 331 (quoting In re Opinion 415, supra, 81 N.J. at 325).
Although the inquirer assures this Committee that the clients in both of the matters involved have consented to the proposed representation, it is from the public eye's view, rather than the clients', that the "appearance" is adjudged. See Perillo v. Advisory Comm. on Professional Ethics, 83 N.J. 366, 373 (1980). Under the inquirer's proposal, an "ordinary knowledgeable citizen" could conclude that the inquirer might obtain some advantage in the contract case by reason of his being his adversary's counsel in the personal injury litigation. As well, an informed citizen could conclude that, conversely, the inquirer might obtain an advantage for his client/attorney by reason of his being his adversary in the contract case. We find that both possible outcomes would be considered improper in the public mind as an informed citizen could conclude that the dual representation would pose a "substantial risk of disservice to either the public interest or the interest of one of the clients." RPC 1.7(c)(2).
The following scenario also presents itself under the proposed representation: to prevent offending his attorney/client, the inquiring attorney may modify his behavior or tactics in the matter in which the attorneys are adversaries. Again, the question before us is not whether the inquiring attorney would actually alter his advocacy for one client to preserve an attorney/client relationship with the opposing attorney; rather, the question is whether the proposed representation creates an appearance of impropriety. See Opinion 549, 114 N.J.L.J. 628 (1984). And, we find that it does.
This Committee has previously addressed a similar issue involving a public entity. In ACPE Docket No. 40-93(A) we dealt with the issue of whether a law firm that represents an assistant prosecutor in a personal injury matter may practice criminal defense law in the same county where the prosecutor is employed. In that inquiry, we concluded that the representation was permissible "as long as the assistant prosecutor in question is not now prosecuting any criminal defendants represented by [the inquirer's] firm" and a screening mechanism is maintained inside the law firm. The present inquirer distinguishes his situation from one where his adversary/would-be-client were an assistant prosecutor. He reasons that, in that case, the representation would be impermissible because the assistant prosecutor's employer is a public entity and as such could not consent to the proposed representation. We do not agree that the circumstance of a public entity's inability to consent would be the determinative factor in assessing the permissibility of representation as presented in ACPE Docket No. 40-93(A). Rather, we find that the reasons prohibiting the requested representation in the present inquiry, i.e., that the public may conclude that the inquiring attorney or the client/attorney may obtain unfair advantages and that the inquiring attorney may, in some manner, suppress vigorous representation to preserve his relationship with his client/attorney, apply equally to the situation presented in ACPE Docket No. 40-93(A).
In conclusion, we find that the inquirer's proposed representation of his adversary in an unrelated matter would create an appearance of impropriety. In so holding, we recognize that the only other ethics tribunal to have considered this question under the appearance of impropriety doctrine reached a different result from ours. See Illinois Opinion 822 (April 4, 1983), ABA/BNA Lawyers' Manual on Professional Conduct: Ethics Opinions 1980-1985 at 801:3015. Nevertheless, we find the proposed conduct to be