97 N.J.L.J. 121
February 21, 1974
Conflict of Interest
Attorney Under Investigation
Representing Prospective Witnesses
An attorney is the subject of a grand jury investigation which
centers around certain conduct in his practice of law. Some of his
former employees and clients have been subpoenaed to appear as
witnesses. After being advised of their right to be represented by
counsel, they contacted the attorney under investigation.
We are asked the following questions:
1. Is he permitted to represent them?
2. If there is a conflict, is he permitted to recommend a particular lawyer?
3. If he is permitted to recommend a particular lawyer, is he permitted to pay that attorney's fee?
4. Is the attorney who is recommended permitted to communicate information which he learns in the representation of the employee or the client to the attorney who is paying the fee?
The present inquiry involves a conflict which is personal to the attorney in question, and as such threatens one of the very basic precepts of the attorney-client relationship - the ability to serve the client's interest with unquestioned fidelity. The witnesses' possible self-interest in cooperating fully, honestly, and openly before the grand jury conflicts directly with the not too unnatural desire of the attorney in such circumstances to avoid the presentation of any evidence which would be embarrassing.
The Code of Professional Responsibility, DR 5-101(A) contemplates such conflict and provides:
Except with the consent of his client after full disclosure, a lawyer shall not accept employment if the exercise of his professional judgment on behalf of his client will be or reasonably may be affected by his own financial, business, property, or personal interests.
The ethical considerations for DR 5-101(A) are found in Canon 5 of the Code of Professional Responsibility of the American Bar Association which states, EC 5-1:
The professional judgment of a lawyer shall be exercised, within the bounds of the law, solely for the benefit of his client and free of compromising influences and loyalties. Neither his personal interests, the interests of other clients, nor the desires of third persons should be permitted to dilute his loyalty to his client.
The Code of Professional Responsibility, EC 5-2, continues as follows:
A lawyer should not accept proffered employment if his personal interest or desires will, or there is a reasonable probability that they will, affect adversely the advice to be given or services to be rendered the prospective client.
It is clear from the foregoing that the attorney in question cannot possibly represent prospective witnesses against him, whether they be former employees, clients, or others possessing information relevant to the investigation. See Drinker, Legal Ethics 120 (1953). Such representation would do violence to the entire concept of the attorney client relationship. Furthermore, the consent of such witnesses would not remove the ethical objections. The appearance of impropriety would certainly be present were such a representation permitted. See A.B.A. Comm. on Professional Ethics and Grievances, Opinion 16 (1929).
In commenting upon former Canon 6 of the Canons of Professional Ethics (predecessor to DR 5-101(A), supra), Drinker in his Legal Ethics (1953) notes at p. 105:
even where all parties agree, the appearance of a lawyer on both sides of the same controversy, particularly in cases of some notoriety, will often give an impression to the public which is most unfortunate for the reputation of the bar, and which of itself should be decisive.
Aside from the appearance of impropriety, the matter has the potential for adversely affecting the administration of justice. Thus such representation directly involves the public interest, and is particularly improper and undesirable. N.J. Advisory Committee on Professional Ethics, Opinion 4, 86 N.J.L.J. 357 (1963). The Supreme Court of New Jersey in Schear v. Elizabeth, 41 N.J. 321, 329 (1964), quoting Ahto v. Weaver, 39 N.J. 418, 431 (1963), noted that such representation is absolutely barred where a conflict affecting the public interest is involved. In the matter subjudice the conflicting interest the attorney would accommodate is his own. Therefore, the rationale for the rule is even more meaningful.
Once it has been established that the conflict between the lawyer and the prospective witnesses against him cannot be cured by a disclosure of the conflict and the consent of such witnesses, the lawyer's duties and responsibilities are fairly clear. In this regard, DR 7-104(A) of the Code of Professional Responsibility states:
During the course of his representation of a client a lawyer shall not:
(2) Give advice to a person who is not represented by a lawyer, other than advice to secure counsel if the interests of such person are or have a reasonable possibility of being in conflict with the interests of his client.
In interpreting the nature and extent of the advice to secure counsel which may be given by a lawyer when a potential for conflict exists, the A.B.A. Comm. on Professional Ethics and Grievances observed in Opinion 245 (1942) that even to recommend several attorneys would raise a suspicion of collusion which should be avoided. Cf. In re Abrams, 56 N.J. 271, 277 (1970).
Accordingly, the giving of advice to retain independent counsel should not go beyond bare recommendation to acquire representation. Such a limitation is particularly important where the conflict of interest is personal to the attorney. N.J. Advisory Committee on Professional Ethics, Opinion 7, 86 N.J.L.J. 405 (1963). In such a factual setting not only would there be an appearance of impropriety, but there would exist a very real and direct conflict of interest were the attorney under investigation
to retain any control or interest, financial or otherwise, in the selection of counsel. Such a practice would not only do a grave disservice to the former employees and clients, but would seriously undermine the broader goals of promoting confidence in our judicial system and in the legal profession.