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Legal Memorandum: Conflict of Interest in Representation of Clients

Issue: When does a conflict of interest arise in an attorney’s representation of clients who may have claims involving a prior client?

Area of Law: Ethics & Professional Responsibility
Keywords: Conflict of interest; An attorney's representation of clients
Jurisdiction: New Jersey
Cited Cases: None
Cited Statutes: N.J. Ethics Rule 1.7(c)(2), Rules 1.7(a), 1.8(k)
Date: 12/01/2008

With the removal of the “appearance of impropriety” from former N.J. Ethics Rule 1.7(c)(2), it now appears that an attorney may represent both clients as long as no actual conflict of interest exists.

Before the amendment to the New Jersey Ethics Rules, the Advisory Committee on Professional Ethics had clearly established that the threat of a potential conflict of interest between the prior and former clients was enough to create the appearance of impropriety and disqualify an attorney from representing both.  See Opinion No. 464 (Dec. 11, 1980); Opinion No. 653 (Oct. 17, 1991). 

However, since the Rules amendment, these decisions no longer govern the decision.  Rather, an attorney is now permitted to represent both the Board and the Township so long as there is no actual conflict of interest as determined by Rules 1.7(a) and 1.8(k).  See Opinion No. 697 (Aug. 8, 2005); Opinion No. 706 (July 3, 2006).  The most important decision in this regard is Opinion 707 (N.J. Advisory Comm. on Prof’l Ethics Jul. 3, 2006).  There, the Advisory Committee was asked whether contemporaneously serving as a member of an elected New Jersey board of education and as a municipal attorney in the same township constitutes a conflict of interest.  The Committee determined that because the standard is no longer an appearance of impropriety, any conflict must actually exist, as determined by the current Rules of Professional Conduct. 

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