Can a criminal defense attorney who negotiates the contract for a county probation officers' association keep practicing criminal law in that county's courts?

Plain-English summary

The inquirer had a significant criminal law practice in the county where his office was located and had been retained by the county Probation Officers' Association, composed of probation officers and senior probation officers employed in the same county, to negotiate their 1985-1986 employment contract. Because some probation officers prepare pre-sentence reports for criminal defendants, the inquirer asked whether he could represent the association and continue handling criminal matters in the county.

The Committee found that, while the situation did not present a conflict in the classic sense, it raised the question whether the circumstances would tend to impair public confidence in the administration of justice, citing Opinion 113, 90 N.J.L.J. 473 (1967). It relied on State v. Galati, 64 N.J. 572 (1974), in which the Supreme Court held that an attorney regularly employed by a local policemen's benevolent association could not represent a member where a fellow member would be called to testify. The Court explained that a lawyer who consults periodically and intimately with an organization's membership acquires, or is believed to acquire, a special status and a "bridge of confidentiality and trust" setting him apart from other lawyers. The Galati Court concurred with the Committee's results in Opinion 113 and Opinion 196, 94 N.J.L.J. 65 (1971), which had barred attorneys representing police organizations from defending criminal matters in the relevant courts.

Applying those authorities, the Committee concluded that permitting the representation would create an aura that justice was not being administered fairly and even-handedly and would erode public confidence in the integrity and impartiality of the justice system. It held that the representative of the association, so long as he is involved with the association, may not appear in the criminal courts of the county involved. The Committee rejected the suggestion that assigning pre-sentence investigations in the inquirer's cases to non-member case managers or supervisors would solve the problem, reasoning that negotiations on behalf of affiliated officers must bear on non-affiliated personnel and that the appearance of influence or lack of impartiality would persist in the public mind.

Currency note

This opinion was issued in 1985, before New Jersey's adoption of the 2004 revisions to the Rules of Professional Conduct (which abolished the freestanding "appearance of impropriety" standard the Committee applied). 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: Can a lawyer who negotiates a county probation officers' union contract also defend criminal cases in that county?

A: No. The opinion held that while he is involved with the association he may not appear in the criminal courts of that county, because the dual role would erode public confidence in the impartial administration of justice.

Q: Why did the Committee treat this as a problem even without a classic conflict?

A: Relying on State v. Galati, the opinion reasoned that counsel to a law-enforcement-related organization acquires a perceived special status and bridge of trust, so his appearance in the county's criminal courts would create an appearance that justice was not even-handed.

Q: Could reassigning pre-sentence reports to non-members fix it?

A: No. The opinion rejected that fix, reasoning that the union negotiations bear on non-affiliated personnel too and the appearance of influence would remain in the public mind.

Background and rules framework

The opinion applies New Jersey's appearance-of-impropriety doctrine, focused on preserving public confidence in the impartial administration of justice, to an attorney serving simultaneously as counsel to a county probation officers' association and as a criminal practitioner in that county. The controlling authority is State v. Galati, 64 N.J. 572 (1974), together with the Committee's Opinions 113 and 196 addressing attorneys for police organizations.

Citations and references

Cases:

• State v. Galati, 64 N.J. 572 (1974) (attorney for a police benevolent association disqualified from representing a member where a fellow member would testify)

Other opinions cited:

• ACPE Opinion 113, 90 N.J.L.J. 473 (1967) (firm representing a P.B.A. could not defend in the municipal court of the employing city)
• ACPE Opinion 196, 94 N.J.L.J. 65 (1971) (attorneys defending the accused could not also serve organizations of law enforcement officials)
• ACPE Opinion 260, 96 N.J.L.J. 1129 (1973)
• ACPE Opinion 320 (Supplement), 100 N.J.L.J. 1126 (1977)

See also

• NJ ACPE Op. 596: Council Member as PBA Attorney
• NJ ACPE Op. 628: Local PBA Attorney Representing a Zoning Board in the Same Municipality
• NJ ACPE Op. 610: Police Officer-Attorney Representing a Defendant Against the Municipality of Employment

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp576-1.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.

116 N.J.L.J. 556, October 24, 1985

OPINION 576

Conflict of Interest - Attorney Representing County Probation Officers' Union While Practicing Criminal Law within County

Inquirer engages in a significant criminal law practice in the county where his law office is located. He has been retained by the Probation Officers' Association - apparently composed of members who are probation officers or senior probation officers employed in the same county - to negotiate their employment contract for the 1985-1986 term. We are told that "... among the duties performed by some probation officers is the preparation of pre-sentence reports for criminal defendants." The issue raised is whether Inquirer may represent the association and continue handling criminal matters in the county.

The factual situation does not present a conflict in the classic sense. However, it raises the question of whether the circumstances present would tend to impair the confidence of the community in the administration of justice. See Opinion 113, 90 N.J.L.J. 473 (1967).

In State v. Galati, 64 N.J. 572 (1974), the Court held that an attorney who is regularly employed by a local policemen's benevolent association may not represent a police officer/member of the association where the prosecutor announced that a fellow member would be called to testify. In so holding, the Court said:

Central to the ethical dilemma is this condition of affairs; when the lawyer of a PBA chapter consults periodically and intimately with its membership for the legislative, economic, and other well-being of the organization and its members, he acquires, or is generally believed to acquire a special status, a relationship, a bridge of confidentiality and trust which sets him apart from other lawyers. Id., at 575.

The Galati Court concurred with the results reached by this Committee in Opinion 113, 90 N.J.L.J. 473 (1967), and Opinion 196, 94 N.J.L.J. 65 (1971). In the former, it was held that a law firm could not, if it represented a P.B.A., represent defendants in the municipal court of the city employing those police officers because in the minds of the public, spoken or unspoken, there would be a belief that success might be achieved by unfair help and assistance. In the latter, it was held that attorneys regularly engaged in the defense of those accused of criminal acts could not serve as attorneys for organizations of law enforcement officials. Cf. Opinion 320 (Supplement), 100 N.J.L.J. 1126 (1977), and Opinion 260, 96 N.J.L.J. 1129 (1973).

Under the circumstances presented here, it is clear to us that to permit the representation suggested would impinge upon the public consciousness and create an aura that justice was not being administered fairly and even-handedly. Public confidence in the integrity and impartiality of the justice system would be sorely eroded. We, therefore, conclude that the representative of the association, so long as he is involved with the association, may not appear in the criminal courts of the county involved.

It is suggested that the problem can be eased by assigning pre-sentence investigations in cases in which Inquirer is involved to case managers, supervisors or others who are not members of the association. We believe that the suggestion does not solve the problem because it appears that negotiations on behalf of affiliated officers must have some bearing on non-affiliated personnel. More importantly, however, the appearance of influence or lack of impartiality would continue in the public mind.