93 N.J.L.J. 19
January 8, 1970
Conflict of Interest - Defense Attorney
Relative in Probation Department
Inquiry is made as to whether it is ethical for an
attorney to represent clients in the County Court, Law
Division (Criminal), or the Juvenile and Domestic
Relations Court when his mother is employed as secretary
to the Chief Probation Officer of the county.
Affidavits submitted with the inquiry over that at no time has any information not available to any practicing attorney been requested by the attorney in question or been given to him by his mother. Her employment in such capacity preceded his admission to the bar. There is no blood relationship between the judge and the
attorney or the attorney's mother. The issue involved is distinguishable from cases in which the propriety of an attorney practicing before a judge, who is a relative, is in question. Rules Governing the Courts of the State of New Jersey, 1:12-1 (a) and (b); Canons of Judicial Ethics, Canon 13.
It is also distinguishable from that created when an attorney represents a private client before a quasi-judicial body, such as a board of adjustment, of which one of the members is the attorney's uncle. This was held to be unethical without proof of corruption in Kremer v. City of Plainfield, 101 N.J. Super. 364 (Law Div. 1968), citing cases involving relatives of members of municipal governing bodies or boards. See also N.J. Advisory Committee on Professional Ethics, Opinion 136, 91 N.J.L.J. 749 (1968). In the instant case the only possibility of improper advantage is collateral, and unethical conduct of the attorney or corrupt conduct of his mother, respectively, in requesting or delivering confidential information would have to be assumed. Such conduct should not be assumed.
We are aware that an attorney should not only avoid all impropriety, but should likewise avoid the appearance of impropriety. N.J. Advisory Committee on Professional Ethics, Opinion 8, 86 N.J.L.J. 718 (1963). Also, it is realized if the profession is to occupy that position in public esteem which will enable it to be of the greatest usefulness, it must avoid not only all evil but must likewise avoid the appearance of evil A.B.A. Comm. on Professional Ethics and Grievances, Opinion 49 (1931).
Thus, the issue emerges as to whether mere employment of a close relative in a governmental department, which maintains confidential records for the benefit of the court, is sufficient to prohibit an attorney from practicing before such court on the basis of improper appearance alone. We are of the opinion that in the absence of actual misconduct, which could be dealt with by established procedure when discovered, sufficient appearance of impropriety does not exist to classify the attorney's proposed practice as unethical.