Must a borough attorney report to the ethics committee that the mayor, a licensed but non-practicing lawyer, took unauthorized fees for performing marriages?

Plain-English summary

A borough attorney casually learned that the borough's mayor, a member of the New Jersey Bar who was not practicing law, was requesting and taking fees for officiating at marriages. The inquirer, then an assistant to the borough attorney, researched the question and concluded with the borough attorney that the mayor might have committed a misdemeanor for taking unauthorized fees. The borough attorney raised the research with the mayor and persuaded him to stop. After the inquirer left that employment, he asked whether his knowledge of the mayor's acts was privileged and, if not, whether he or the borough attorney should have reported the conduct.

The Committee declined to decide whether the conduct was in fact a misdemeanor, and it treated the question of reporting to the borough council as outside its jurisdiction. On the ethics question, it framed the duty under DR 1-103, which requires a lawyer to report to the appropriate ethics committee conduct that adversely reflects on another lawyer's fitness to practice, except where the information is privileged.

The Committee concluded the information was not privileged. The borough attorney had acquired knowledge of the mayor's acts otherwise than from the mayor; even though he later confronted the mayor and the mayor confirmed the facts, that did not bring the matter within the privilege under N.J.S. 2A:84A-20. Because the information was not privileged, the Committee held there was a duty under DR 1-103 to report the misconduct designated by DR 1-102.

Currency note

This opinion was issued in 1976, 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 reporting duty then in DR 1-103 is now in RPC 8.3, and the misconduct definitions then in DR 1-102 are now in RPC 8.4. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Does a lawyer have to report another lawyer's misconduct learned outside a privileged communication?

A: Under this opinion, yes. The Committee held that because the borough attorney learned of the mayor's acts from a source other than the mayor, the information was not privileged, so DR 1-103 required reporting.

Q: Did confronting the mayor and getting his confirmation make the information privileged?

A: No. The opinion concluded that the lawyer had already acquired the knowledge otherwise than from the mayor, so the mayor's later confirmation did not bring it within the privilege under N.J.S. 2A:84A-20.

Q: Did the duty depend on the mayor actually being guilty of a crime?

A: No. The Committee expressly declined to decide whether the fee-taking was a misdemeanor. The reporting duty turned on whether the conduct adversely reflected on the lawyer's fitness and whether the information was privileged, not on a criminal conviction.

Background and rules framework

The opinion applied DR 1-103 (duty to report another lawyer's misconduct to the appropriate ethics committee, subject to a privilege exception) together with DR 1-102 (which designated the categories of misconduct). In current New Jersey terms, the reporting obligation is RPC 8.3 and the misconduct categories are in RPC 8.4. The opinion also turned on the statutory testimonial privilege in N.J.S. 2A:84A-20.

Citations and references

Rules of Professional Conduct:

• DR 1-103 (duty to report another lawyer's misconduct), as in effect 1976; now MR 8.3 / NJ RPC 8.3
• DR 1-102 (categories of misconduct), as in effect 1976; now MR 8.4 / NJ RPC 8.4

Statutes:

• N.J.S.A. 37:1-13 (authority to officiate at marriages)
• N.J.S. 2A:105-1 (taking unauthorized fees)
• N.J.S. 2A:84A-20 (attorney-client privilege)

Cases:

• In re Stein, 1 N.J. 288 (1949)
• In re Del Mauro, 57 N.J. 317 (1970)
• State v. Savoie, 128 N.J. Super. 329 (App. Div. 1974), rev'd 67 N.J. 439 (1975)

See also

• ABA Formal Op. 04-433: Reporting Misconduct of a Non-Practicing Lawyer
• NJ ACPE Op. 327: Confidential Communication to a School Board Attorney by a Member

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp324-1.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.

99 N.J.L.J. 289, April 8, 1976

OPINION 324

Borough Attorney's Disclosure of Attorney-Mayor's Misconduct DR 1-103

A borough attorney casually learned that the mayor of the borough was requesting and taking fees for officiating at marriages under authority given by N.J.S.A. 37:1-13. The mayor, although a member of the New Jersey Bar, was not practicing law. The inquirer, then employed as assistant to the borough attorney, researched the mayor's authority to take such fees, and with the borough attorney concluded that under N.J.S. 2A:105-1 the mayor may have been guilty of a misdemeanor for taking unauthorized fees. The borough attorney reviewed his research with the mayor and persuaded him to stop taking the fees.

The inquirer then left the borough attorney's employ, and now he asks whether his knowledge of the mayor's acts was privileged and, if not, whether the borough attorney or he should have reported the mayor's allegedly illegal conduct to the borough council and to the county ethics committee. The issue of reporting to the borough council is not within our jurisdiction.

We shall consider an attorney's duty under DR 1-103 to disclose possible "misconduct" of another attorney in the performance of the latter's authority as mayor to officiate at marriages under N.J.S.A. 37:1-13. DR 1-103 requires an attorney to report to the appropriate ethics committee conduct which adversely reflects upon another attorney's fitness to practice law, except where the information is privileged. The acts of misconduct are designated in DR 1-102.

The borough attorney acquired knowledge of the mayor's acts otherwise than from the mayor; and, although he confronted the mayor with this knowledge and the latter confirmed it, the matter does not appear to be privileged under N.J.S. 2A:84A-20. In re Stein, 1 N.J. 288 (1949); 97 C.J.S. 800 Witnesses 283, d.

We do not pass upon the question of whether the acts constitute a misdemeanor under N.J.S. 2A:105-1. See In re Del Mauro, 57 N.J. 317 (1970), and State v. Savoie, 128 N.J. Super. 329 (App. Div. 1974), reversed 67 N.J. 439 (1975).

Since the inquirer's information was not privileged, there was a duty under DR 1-103 to report misconduct designated by DR 1-102.

We are aware that public officials authorized to perform marriages, under N.J.S.A. 37:1-13 customarily have accepted fees. By Municipal Court Bulletin Letter #115 (October 7, 1965), circulated only to municipal courts, the judges of such courts were specifically directed to cease the practice. And see In re Del Mauro, supra, where the history of this practice by judges is noted. Yet in that case, the court specifically refrained from considering the question of a violation of N.J.S. 2A:105-1.