If one lawyer in a firm sits as a tax-appeals judge, can the firm handle tax appeals before that tribunal or the boards below it?

Plain-English summary

The inquiry asked, where an associate of a firm is a judge of the State Division of Tax Appeals, whether the firm may represent clients in tax appeals before a County Board of Taxation, and whether it may represent clients before the State Division itself if the associate does not participate in the hearing or decision.

Relying on its Opinion 189, the Committee reasoned that the associate-judge could not appear before a County Board of Taxation because decisions of the county board are appealed to the state board of which he is a member, and that this prohibition governing the associate ascends to all members of the firm, associates and partners alike. The fact that the associate would disqualify himself in matters before the State Division involving his firm would not change the ethics of the problem, because the appearance of wrongdoing remains where the public is concerned. The Committee pointed to DR 9-101, read with DR 8-101, as establishing the guidelines for a lawyer who holds public office or position, and stressed that public confidence in government and the profession must be preserved. For these reasons, it answered both questions in the negative.

Currency note

This opinion was issued in 1971, before New Jersey's adoption of the 2004 revisions to the Rules of Professional Conduct, and predates the 1984 replacement of the Disciplinary Rules by the RPCs. The imputed-disqualification and public-office principles it applied (DR 9-101, DR 8-101) are now treated under RPC 1.10, RPC 1.12, and RPC 1.11. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.

Common questions

Q: Can the firm handle tax appeals if the judge-associate stays out of the case?

A: No. The Committee held the associate's disqualification imputes to the whole firm, and his recusal in particular matters would not change the result.

Q: Why does the disqualification reach the partners too?

A: The Committee said the prohibition governing the associate member ascends to all members of the firm, both associates and partners.

Q: What drove the conclusion despite no actual wrongdoing?

A: The appearance of wrongdoing where the public is concerned; the Committee cited DR 9-101 read with DR 8-101 on lawyers holding public office.

Background and rules framework

The opinion applied the imputed-disqualification principle and the public-office rules (DR 9-101, DR 8-101) to a firm with a sitting tax-appeals judge. In current New Jersey terms the analysis falls under RPC 1.10, RPC 1.12, and RPC 1.11.

Citations and references

Rules of Professional Conduct:

• DR 9-101 and DR 8-101, as in effect 1971; now MR 1.10 / 1.12 / 1.11 and NJ RPC 1.10 / 1.12 / 1.11

Other opinions cited:

• NJ ACPE Opinion 189, 93 N.J.L.J. 789 (1970); and Opinions 22, 168, 182, 186, 191, 192

See also

• NJ ACPE Op. 241: Two Merged Legal-Aid Offices on Opposite Sides
• NJ ACPE Op. 236: Law Partners on Opposite Sides of a City Tax Fight

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp221-1.html
• Issuing authority: New Jersey Supreme Court Advisory Committee on Professional Ethics, via the NJ Courts Supreme Court Committees page

Original opinion text

Reproduced from a full-text mirror of the official opinion for research purposes. The linked official source controls.

94 N.J.L.J. 1002, October 28, 1971

OPINION 221

Conflict of Interest - State Division of Tax Appeals Judge and His Associates

The inquiry is as follows:

1. If an associate of a firm is a judge of the State Division of Tax Appeals, may the firm represent clients in tax appeals before County Board of Taxation?

2. If an associate of a firm is a judge of the State Division of Tax Appeals, may the firm represent clients in appeals before the State Division if the associate does not participate in either the hearing or the decision to be made by the State Division?

In N.J. Advisory Committee on Professional Ethics, Opinion 189, 93 N.J.L.J. 789 (1970), we thought we had set forth clearly the rationale of all previous inquiries regarding conflict of interest arising out of the relationship between lawyers, law firms and governmental agencies.

It would seem to us that the associate of the firm involved, who is a member of the State Division of Tax Appeals, certainly could not appear before a County Board of Taxation. Decisions of the county board are appealed to the state board, of which he is a member. This should answer both questions because the prohibition governing the associate member of the firm would ascend to all members of the firm, associates and partners. The mere fact that the associate would disqualify himself in matters before the State Division involving his firm would not change the ethics of the problem.

The "appearance of wrongdoing still remains where the public is concerned. In the Disciplinary Rules of the Code of Professional Responsibility, DR 9-101, when read with DR 8-101, clearly establishes the guidelines for the lawyer who holds public office or a public position. It is set forth at length in our Opinion 189 herein before referred to. Public confidence in government and the profession must be preserved. The standards to be observed have been clearly set forth by this Committee in numerous opinions. See N.J. Advisory Committee on Professional Ethics Opinions 22, 87 N.J.L.J. 13 (1964); 168, 93 N.J.L.J. 7 (1970); 182, 93 N.J.L.J. 492 (1970); 186, 93 N.J.L.J. 617 (1970); 191, 94 N.J.L.J. 33 (1971); 192, 94 N.J.L.J. 44 (1971).

For the reasons stated, the answer to the above questions is in the negative.