On order to show cause why respondents should not be disciplined.
For discharge of order -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Schettino and Haneman. Opposed -- Justice Hall. Schettino J., (concurring). Jacobs, J., concurs in result.
[44 NJ Page 332] A complaint was filed with the County Ethics Committee charging respondents with violation of
Canon 6 of the Canons of Professional Ethics in that while serving as municipal attorneys, they also were attorneys for and served conflicting interests of certain land and building developers whose projects were located in the same municipality. The Committee did not make a presentment but at our request filed a report. We issued an order to show cause.
Although the testimony in some respects is not free from doubt, we cannot say that it clearly and convincingly demonstrates that respondents did represent the developers in their dealings or transactions with the municipality, and hence it cannot be said that there was a literal violation of Canon 6, which reads in part:
"It is the duty of a lawyer at the time of retainer to disclose to the client all the circumstances of his relations to the parties, and any interest in or connection with the controversy, which might influence the client in the selection of counsel.
It is unprofessional to represent conflicting interests, except by express consent of all concerned given after a full disclosure of the facts. Within the meaning of this canon, a lawyer represents conflicting interests when, in behalf of one client, it is his duty to contend for that which duty to another client requires him to oppose."
Dual representation is particularly troublesome where one of the clients is a governmental body. So, an attorney may not represent both a governmental body and a private client merely because disclosure was made and they are agreeable that he represent both interests. As Mr. Justice Hall said in Ahto v. Weaver, 39 N.J. 418, 431 (1963), "Where the public interest is involved, he may not represent conflicting interests even with consent of all concerned. Drinker, Legal Ethics, 120 (1953); American Bar Association, Opinions of the Committee on Professional Ethics and Grievances 89, 183 (1957)."*fn1 Mr. Chief Justice Weintraub in a "Notice to the Bar," 86 N.J.L.J. 713 (1963), stated:
"Because of some matters called to its attention, the Supreme Court wishes to publicize its view of the responsibility of a member of the Bar when he is attorney for a municipality or other public agency and also represents private clients whose interests come before or are affected by it. In such circumstances the Supreme Court considers that the attorney has the affirmative ethical responsibility immediately and fully to disclose his conflict of interest, to withdraw completely from representing both the municipality or agency and the private client with respect to such matter, and to recommend to the municipality or agency that it retain independent counsel. Where the public interest is involved, disclosure alone is not sufficient since the attorney may not represent conflicting interests even with the consent of all concerned." (Emphasis added)
Here, as we have said, we do not find the respondents represented the developers in the developers' dealings with the municipality. Although for this reason there is no literal violation of Canon 6, nonetheless that canon does not exhaust the ethical responsibility of the bar in this area. It is fundamental that no attorney who holds a public office should suffer anyone to attempt to gain an advantage by virtue of his official status, and hence it would be improper for an attorney so situated to accept a retainer if he is aware that the prospective client has that objective in mind.
We do not suggest that the members of the bar must receive a prospective client with unbecoming suspicion, nor of course do we suggest that an attorney for a municipality may not represent individuals or interests located therein merely because it may come to pass that the private client will have some transaction with the municipality.
Nonetheless the subject of land development is one in which the likelihood of transactions with a municipality and the room for public misunderstanding are so great that a member of the bar should not represent a developer operating in a municipality in which the member of the bar is the municipal attorney or the holder of any other municipal office of apparent influence. We all know from practical experience that the very nature ...