98 N.J.L.J. 857
October 9, 1975
Conflict of Interest
PBA Attorney's Private Practice
Where Police Member is Witness
Since the decision in State v. Galati, 64 N.J. 572 (1974), we have received several inquiries from PBA attorneys as to whether certain of their specific private retainers were prohibited by Galati.
The defendant Galati was a police officer of Edison Township who was indicted for atrocious assault and battery and misconduct in office. A fellow police officer, Richard Fisher, witnessed the events which gave rise to the charges against him. Galati's attorney, privately retained by him, was also an attorney regularly retained by Policemen's Benevolent Association, Local No. 75, of Edison Township, and he was likewise an attorney for the New Jersey State Policemen's Benevolent Association, Inc. Officers Galati and Fisher were fellow members of the Edison PBA. The trial court, at the prosecution's behest, ousted Galati's attorney from the case for "conflict of interest." The Supreme Court granted leave to appeal for the purpose of disposing of this limited issue. The Court held that such representation was unethical; but, owing to the attorney's substantial involvement as defense counsel, it did not compel him to abandon the defense because of the probable prejudice to his client, but the Court said: "In the future, however, all similar or like representations must be eschewed." The questions we are now called upon to answer are substantially as follows:
1. Is the Galati opinion limited to criminal cases only?
2. Does the opinion preclude a PBA attorney from representing a police officer in workmen's compensation claims, divorce actions, disciplinary proceedings or contract negotiations?
3. Does Galati apply to an attorney representing the PBA on a per case basis and not as a regularly retained attorney?
4. Does Galati preclude a PBA attorney from appearing in any criminal matter in any municipality in which a police officer is a
member of the PBA?
The Supreme Court indicated that its opinion should be a guide for the bar and hopefully believed that it clearly, precisely and
unequivocally spelled out the type of representation by PBA attorneys that would he unethical. The following are significant excerpts from the opinion:
So it is that when the PBA's lawyer undertakes the representation of a private cause in which a member of that same PBA is destined to testify (on one side or another) there is bound to occur a public suspicion that the PBA witness will be inclined to palliate or vivify his testimony in order to accommodate the lawyer who, outside the court room, is en rapport with and supportive of the private and organizational interest of the PBA witness.
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. Cf. Disciplinary Rule 9-101, exhorting the lawyer to avoid "even the appearance of impropriety.