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                                         94 N.J.L.J. 801
                                        September 2, 1971


Appointed by the New Jersey Supreme Court

Conflict of Interest -
Legal Services Organization
Defending Action Instituted by Board Member

    A county legal services corporation has asked for our opinion with respect to certain circumstances which arise during the course of its work.
        The organization is a nonprofit corporation whose direction is vested in a board of directors. Members of the board control the general policy of the project, including determination of eligibility standards and determination of the type of services to be rendered. Members may, on occasion, determine the eligibility of specific clients by name and may determine the propriety of the project's furnishing specific types of service to named clients.

        No member of the board has access to any client's file. In determining the services to be rendered in general, or to particular clients, the board merely sets general policy guidelines. It may not control the actual handling of a case, dictate strategy or otherwise direct the attorney in the handling of a case. Questions of this nature are passed upon by the project administrator.

        The project operates on a county-wide basis. It does a substantial amount of matrimonial, consumer and landlord and tenant litigation, which are also fields for specialization by the private bar. It is thus inevitable that from time to time attorneys employed by the project will be called upon to defend actions instituted either by board members, or by as associates in firms in which board members are employed.

    The following questions are posed.

    1. May project attorneys defend an action instituted by a partner in a firm in which one of the board members is an associate?

    2. May project attorneys defend an action instituted on behalf of the same firm by another attorney who is an associate of the firm? It is noted that pleadings are signed on behalf of the firm by the board member.
    3. Would the size of the firm make any difference?
    4. Since membership on the board changes from time to time, how long after a board member resigns may project attorneys defend
actions instituted by the board member or by the firm of which he is an associate or partner?
    The answer to the first three questions must be in the negative. It is clear that the corporation may not defend a matter in which a board member represents the plaintiff. Canons of Professional Ethics, Canon 6 forbids a representation of conflicting interests. It is the obligation of each attorney to represent his client with undivided fidelity and not divulge his secrets or confidences. No matter how removed the attorney-board member may be from the actual handling of the corporation's cases, he is nevertheless a member of the board and responsible for the proper functioning of the organization. In such circumstances a corporation cannot represent a client whose interest is totally opposed to that of the attorney-board member's client.
    We have said on many occasions that the acts of the attorney are also those of his partners and associates. The size of the law firm would have no bearing on this matter.
    As to the defense of actions brought by former board members, there can be no hard and fast rule. It is assumed that the attorney-board member on termination of his membership on the board has severed all connection with the organization. After the lapse of a reasonable time, the length of which may vary depending on how closely the attorney has been associated in the public's mind with the organization, the corporation may defend actions instituted by the former board member.

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