102 N.J.L.J. 297
September 28, 1978
Conflict of Interest
Attorney Representing Members
A law firm which represents a public employee labor
organization has been asked to provide legal services for its
members at a 30% discount from its normal fee. We have been
furnished a copy of the "Guidelines for the ... Attorney Referral
Program." The attorneys ask whether it would be ethical for them to
participate in the program. They do not say who prepared the
Guidelines for the program, but they apparently were not initiated
or promoted by the inquiring firm. They raise questions as to the
applicability of certain disciplinary rules, viz., DR 2-101
(Publicity), DR 2-103 (Recommendation of Professional Employment)
and DR 5-107 (Avoiding Influence by Others Than the Client).
With respect to DR 2-101, the Supreme Court is presently considering new disciplinary rules dealing with advertising. This Committee is deferring all requests for opinions on that subject until the new rules are promulgated. DR 2-103(D) provides that a lawyer is not prohibited from being recommended, employed or paid by or cooperating with, among others, "(4) Any bona fide organization that recommends, furnishes or pays for legal services to its members or beneficiaries provided the following conditions are satisfied..." There follow several requirements in subparagraphs (a) through (g). Subparagraph (g) requires that the organization first file a report with the Supreme Court and obtain from it a registration number. We have not been informed whether such report has been filed. If the plan is properly registered in accordance with the provisions of DR 2-103(D)(4), an attorney may ethically represent members of the organization. See our Opinion 383, 100 N.J.L.J. 1205 (1977). So far as DR 5-107 is concerned, the plan clearly indicates that the organization establishing the plan must not infringe upon the independent exercise of professional judgment by the attorney. The client is the member of the organization who consulted the attorney. Accordingly, this rule is not a bar to representation of members of the organization so long as plan of operation has been submitted and a registration number obtained in accordance with the rules.
A problem remains, however, with respect to the continued representation of the organization and the representation of its individual members. This matter was alluded to in our Opinions 114, 90 N.J.L.J. 480 (1967), and 256, 96 N.J.L.J. 745 (1973). While we are aware that this is not an uncommon practice, we repeat what was said in Opinion 256, viz, as a general practice an attorney representing an organization should not be the attorney selected to
render legal services to the members of the organization.