*1 DOLAN, OF IN THE MATTER EDWARD AT LAW. AN ATTORNEY January April 5, Argued 1978. 197 7 Decided
(1) *2 cause for Central Ethics Mr. Nino D. Caridi argued Unit. John PHbish cause for argued respondent.
Mr. A was filed with the Middlesex complaint Per Curiam. with con- charging respondent Ethics Committee County with certain real estate trans- interest in connection flicts Committee’s the Court report After receipt actions. *3 file a for an Ethics Unit to petition directed the Central in That Cause, issued due course. which Order to Show conduct constituted viola- that respondent’s asserts petition 8-101, 9-101, DR re- 5-105, DR and dealing tions of DR the conflicts, of public position, with abuse spectively appearance impropriety.
I the which held respondent during public position The that of for municipal attorney hereto was times pertinent at the Carteret, to which he wаs appointed Borough time to the events of 1971. For some prior beginning urban had Borough implemented policy question Authority (FHA) pro- to Federal Housing renewal pursuant it created Carteret Redevelop- cedures. ordinance By of' members, of six five ment Agency (Agency), consisting body. municipal governing whom appointed were was solicit from de- proposals function Agency’s utilization of certain tracts for low and moderate for velopers Inc., Brothers, units. multi-family Gulya income dwelling townhouse proposal project submitted developer, Thereafter, tracts, which the Agency accepted. one on April 1971, Gnlya Bros. Redevelopment Corp. (Gulya) was established for the the land from purpose purchasing the Agency it, the townhouses developing marketing which it erected thereon.
Upon acceptance Gulya’s was proposal Agency obtain required from the mu- necessary approvals .to nicipal planning board, board of adjustment govern- ing body. Additionally, it was convey obliged marketable developer title to the tracts In due involved. course the Agency, which was represented its own coun- sel, successfully processed applications before the appropri- ate municipal bodies, 15, 1971, and on November the .Bor- final ough gave approval project.
Thereafter for the Gulya’s sought financing proj- ect on behalf of the but aid was unsuccessful. To developer re- this endeavor the out the attorney sought develоper’s who had spondent, “handled for him the past”, matters was “familiar had done financing”, and “some mortgage extensive real estate work.” or June of 1972 re- May Gulya’s at discussed the spondent, attorney, instance with the took project Gulya and at that principals point over full con- developer, Prior sent of counsel. had not previous respondent whatsoever. represented Gulya any capacity Specifically, he had not on the behalf appeared developer’s before neither had he either Agency; board represented planning at the adjustment Agency’s board time appli- those other cations to bodies or time. Respondent *4 was, however, the for when the Council Borough the favorably adjustmеnt’s acted on board of recommenda- tion to the for grant Agency’s application necessary the for this project. variances Gulya’s efforts behalf the re- on
Respondent’s produced NTew financing through Jersey mortgage quired company. consisted both the financing construction mortgage available buyers and permanent mortgages townhouses. Respondent’s representation con- developer
o oí stage the initial construction proj- tiuued throughout has was, indicated, at- ect, -which time he as during which the was for in torney municipality development located, was municipality albeit business of any ap- wise connection developer. on behalf plication also Respondent represented cоmpany the mortgage in the mortgages purchase sales used involving permanent from In those same he Gulya. townhouses transactions to act well on behalf of purchasers-mortgagors came as units their loan and closings housing mortgage title, under circumstances. In order mar- following ket the townhouses real estate developer engaged agent, it buyers whose function was attract and assist those buyers PHA It was obtaining agent who approvals. led the whatever were buyers through preliminary steps the contracts, to execution of was required leading the agent who secured execution of those contracts. Re- spondent did not enter until after picture the con- tracts had been buyer. The contract forms signed by utilized con- agеnt, to these pursuant procedures, tained the following clauses:1 responsible paying closing attorneys for Purchaser be for shall mortgage (sic) legal of title and re- for their fee examination responsible cording mortgage for and also of deed and and shall pay insurance,- survey, mortgage hazard insurance for
shall title inspec- appraisal premium, insurance, for escrow funds taxes percent processing except may be otherwise tion fees and a one fee ** provided *. herein. legal pay purchaser attorney, fee If the seller will uses seller’s survey, mortgage, recording examination, mort- of deed and title inspection gage appraisal insurance, fees. title proceedings directly in these nоt been attacked 1These clauses have pass propriety. and we do not their *5 By virtue of the arrangement last referred to either respon- dent or associate in his office attended closings only for the seller in instances, sixteen but also for the pur- chasers-mortgagors at least fourteen of those closings.2 At these closings purchasers were notified the first time of the potential conflicts of interest out arising of respon- dent’s multiple representations. They were presented and executed two separate waiver consent forms, one acknowledging and approving respondent’s representation of purchaser and seller and other acknowledging ap- his proving representation of mortgagor, mortgagee seller. seen, then,
As may there two areas separate po- tential conflict of interest called to our attention Committee report and the Central present- Ethics Unit’s ment.3 The first centers about respondent’s representation the builder-developer while at same at- time serving torney for the of Carteret. second Borough focuses seller, closing purchasers- mortgagors and under mortgagee circumstances casting doubt on the informed nature of the consents given buyers to this multiple representation.
II We address first the asserted conflict presented by respon- dent’s while act- developer concurrently complaint, 2In a answer letter to the marked in evidence at respondent hearing, Committee’s indicated that “one or two of the people bring closing.” did their own emerges, although upon 3A third area it was not touched in the complaint, testimony, report presentment. arrangement It is the respondent represented Gulya mortgage which under both and n — company respect mortgage again to the construction at a attorney. municipal time when he was Much of thrust of opinion equal relationship can be directed with to that force even though presented directly. it has not to us *6 that no as out attorney. Respondent points borough ing any dealings involve Gulya time of representation did his to mu- All Borough. applications with the transactions convey to Agency the to nicipal necessary permit boards re- before had completed clear title the developer commenced. developer spondent’s in- Agency the course negotiations Throughout matters, was Gulya represented volving Borough-related for on respondent own who called attorney eventually its an obstacle. when as assistance loomed financing however, fact remains that this, respon- With all of to the mandate this directly contrary was dent’s conduct B., There J. 331 it In re A. and N. Court in it may proper in some situations noted that while was for DR 5-105) (within proscription nevertheless dual representation, in engage subject development likelihood of in land is which the one public municipality misunder- a room transactions with represent great standing not member bar should are so that a muniсipality developer operating member of in which the in a municipal mu- holder of other or the the bar is the practical nicipal apparent from all know We office influence. developer experience very involves work of the nature applications, zoning municipal action, probability such as of some building compliance subdivisions, building permits, with the land code, etc. accordingly is is It our view such dual for- though hidden the mu even does not advise either private respeet concerning nicipality or the client with matters contrary to them. such dual itself fact public added).] (emphasis [44 interest. 334-35 J. at While in a sense rule may harsh, be deemed somewhat in a where, here, situation particularly as the representation of both was at municipality con- developer no time with a nection transaction both clients, we are involving view that strongly public interest demands strict B., adherence to the re letter A. A munic- supra. ipal attorney’s public obligations such that he must
take to avoid the shadow which particular pains of suspicion himself in a inevitably is cast when he begins entangle affairs of a representative capacity legal developer within the attor- operating municipality. If the municipal not a ney is member of the full-fledged family,” “municipal he is least close confidential relationship toas warrant his may those who benefit representing here, have (or, from already successful benefitted) ap- plications by others (here, Agency) рlanning board and zoning adjustment. board of
In this ease the affirmative of those municipal action boards, while made at behest, the Agency’s inured to the benefit of Gulya. were, Those real applications very *7 sense, in Gulya’s interest, were made aat time when re spondent represented Borough, and were then followed by respondent’s representation of Gulya connection with the same development This project. representation ignored clear B., admonition of In re A. and supra, and hence merits our disciplinary action.
Ill We our to the conflict turn attention presented by respondent’s seller, multiple representation purchaser- At we mortgagor, outset mortgagee.4 recognize emphasis desirability our rules on the disciplinary place counsel. 5-105 completely independent DR Specifically, se- prohibits under certain multiple representation except the, analogous context, by practice 4In an not uncommon some lending requiring mortgagors repre institutions real be estate to by attorney gone Legis sented the lender’s has not unnoticed prohibits practice N. lature. J. S. A. 46:10A-6 a such a in mort gage mortgagee loan transaction where is consumer. Senate 35, passed Bill an amendment this statute which has to the Senate Assembly Banking Committee, and is now before the and Insurance expands scope prohibit practice of the statute such a in all mortgage transactions, regardless mortgagee loan of whether party. or a consumer commercial
9 B., In A. and re See circumstances.5 circumscribed verely The J., concurring). at 335 (Schettino, supra, complete owes rules is that 'sense of our The him. retained who has the client undivided loyalty way the client be able to advise should interests, professional utilizing the client’s to protect utmost. Consequently, ability judgment training, stand in would arise which if interest could any conflicting must the client zeal, then unstinting of that kind of way his limited continue attorney may informed and the so informed consent. with the client’s only vendor transaction, positions In a real estate re conflict. inherently susceptible purchaser the case likewise 40 N. J. This is Kamp, re Id. 596. relationship. borrower-lender repre- multiple of an involved in such quirements Accept Employment Refusing if the Continue 5DR5-105. May Impair the Inde- Another Interests of Client Lawyer Judgment pendent of the Professional employment (A) lawyer proffered if the exercise A shall decline judgment independent professional client in behalf of a of his acceptance adversely likely or is to be will be affected permitted except proffered employment, extent (C). under DR 5-105 employment multiple (B) lawyer if the ex- A shall continue judgment independent professional in behalf ercise of his *8 likely adversely his affected a client will or is to be per- client, except representation the extent of another (C). DR mitted under 5-105 except (B) (C) (A) DR 5-105 and In situations covered may lawyer statute, prohibited by rule, opinion, or directive multiple represent can аde- clients if he believes that he represent quately if and each consents the interests each representation and facts full disclosure the after to the possible of such on the exercise effect of the judgment professional independent on behalf of each. of his employment lawyer required (D) to decline with- aIf partner 5-105, employment no or as- DR under draw from may accept firm or continue such em- of his or his sociate ployment. are sentations of and set out vendor purchaser, mortgagee in In re supra, Kamp, in Justice Proctor’s where opinion he said: requires attorney only prospec- Pull disclosure the to inform attorney’s relationship seller, tive of the client to the but also to explain pitfalls may in detail the arise in course of buyer transaction which would make it desirable have in- that the dependent significance counsel. The full con- flicting may interests should be to the disclosed client that he so intelligent giving make an ney decision If before his consent. the attor- properly represent buyer aspects cannot in all of the trans- relationship seller, action because quires full disclosure re- buyer scope that he inform limited of the of his intended buyer’s point advantages of the interest out the buyer’s retaining independent may the occur, counsel. A similar situation example, buyer when the of real utilizes estate the ser- represents party financing vices of the who the transac- parties title, tion. To extent that both seek а marketable the. there appear Nevertheless, would to be no conflict between their interest. possible may concerning financing, conflict arise the terms of the at the therefore time of the retainer the should make buyer potential addition, clear area of conflict. In if buyer’s protected only they interests to the extent that coincide party financing transaction, those should buyer explain scope protection may limited so that knowledge intelligently
act with full facts. [40 595-96.] N. J. at N. J. Advisory See also Committee on Ethics, Professional 51, 87 N. J. Opinion L. application
In the of these principles to the matter be- fore we are ns mindful of the circumstances surrounding of transaction, this type namely, purchase low and income moderate dwellings with federally financ- guaranteed which serve to ing, it from distinguish the conventional real transfer of estate. is less There flexibility in the terms. Federal auspices this context brings certain which leaves rigidity little room for negotiation price other commonly negotiable features as limits and rates on borrowed money. The prescribed forms for bond contain mortgage fixed terms from which variance is
11 Nevertheless, ever, severely if strie- rarely, permitted. nature between relationship mortgagor tured obliga- wise to the essential no serves diminish mortgagee The for con- timely tion of full and disclosure. opportunity — instance, in flict terms of a condition title to arise n —(cid:127) other but not the while party perhaps one acceрtable is the remote is no means More apparent non-existent. there buyer that as between possibility developer-seller con- may ripen disagreement respecting physical some Without dition premises. presuming suggest conflict, at- exhaustive list areas we draw potential as tention these the kinds of matters which consent- they aware before ing should made purchasers-mortgagors consent to the another to the attorney representing party transaction. at the executed by purchasers
Here the consent forms more than perfunctory to little eleventh hour amounted admonition. After Kamp’s formally comply effort duty an “immediate” retained, was he had the respondent relationship client nature of his exрlain any client of significance and inform the the seller to dual given representa that client have may consent Lanza, 596; In re 40 see Kamp, supra, In re tion. 350-51 N. J. to heed that arise from the failure can problems demonstrated that warning graphically instructive purchaser us. The record reveals the matter before con- forms after the one of consent objected to signing to him (be- had explained situation flict interest ap- him in place position cause he believed might he ultimately but which was “illegal”), conflict proving from his wife of persuasion result executed form the disruption moving avoid serious and a desire to closing. adjourned from cancelled any plans resulting that the we with the Committee’s conclusion Although agree in the literаl voluntarily was sense signed form consent the seller exerted overt nor neither respondent *10 on the pressure client, nevertheless we are left with im- the pression, as Committee, was the form that execution the was due more to exigencies the situation to an than unfettered will. And this need not and not should have The been. circumstances surrounding execution of the consent form in this instance instance and other every where the were forms like fashion executed in should have been permitted us reveals arise. record before that respondent’s office “for several purchasers dealt * * * weeks before in that in- Somewhere closing.” terval the time have been should and opportunity taken created explain to purchasеrs potential conflicts—- — “pitfalls” so to allow for execution consent forms after due deliberation. may
While the purchase gen- this practicalities type joint pur- erate of low middle income and their chasers-mortgagors mortgagees sellers any in no single attorney, practicalities justify those sense full, timely relaxation of requirement complete explanation repre- such pitfalls implications sentation Indeed, for conflict. potential given with- increased likelihood that of clients be may class out the resources obtain separate representation, need meticulous of full observance of requirement disclosure and informed consent underscored. is
IV While tenable have been made in of сom arguments favor plete bar to dual in a any and seller buyer Lanza, transaction, real estate e. In 65 g., see re N. J. supra, at 353 (Pashman, J., re concurring); Rockoff, 394, 397 J., we (1975) (Pashman, on balance concurring), an se decline inflexible rule. our adopt per Confining selves of situation there type before us are (assuredly others, entirely unrelated to financial the stark pressures), economic realities that were unyielding require declared, many pro ment of individual representation to would financial circumstances spective purchasers marginal so, the legal pro be left That representation. being without frank element of economic fession must be to recognize dual repre attendant consent to a client’s cоmpulsion upon sentation in a estate and to be circumspect real purchase who, or victimization those avoiding any penalization life, facts of such consent. force of these economic give serve as notice henceforth This should opinion justified where dual to be on the sought *11 consents, basis Court will not tolerate con this parties’ than voluntary. sents which are less and knowing, intelligent in such a Consents must be obtained as insure that way —(cid:127) had time manifestly client not adequate provided has (cid:127)— in the matter under consideration to reflect upon the choice, and must not be forced by the client upon exigen This force to the dual closing. applies equal cies and mortgagor representation mortgagee.
In viеw of record, respondent’s impeccable including service and history significant public contributions we conclude that profession, appropriate the legal discipline by is exercised of this imposition public reprimand. J., While I concurring dissenting. Pashman, applaud the rules Court’s tightening governing multiple repre- in transactions by real estate further sentation its narrowing basis, circumstantial I am afraid that its effort permissible an additional provide safeguard consumers of legal far enough. services does rule simply go prophylactic will announced herein do little to enhance the that likelihood in such representation provided circumstances quality which would be will that counsel duplicate provided by loyalty. Similarly, undivided Court’s admonition that at- avoid torneys “any penalization must or victimization” of who, constraints, clients result of economic consent to will be far from dual effective to representation prevent the in abuses endemic various situations.
14
On occasions I have enumerate the previous sought two reasons se rule for compelling supporting adoption per certain where an ir dual in situations bidding reconcilable conflict of so inheres the circumstances loyalty that interests each the mul adequate protection of Lanza, 347, In 353 clients re 65 tiple is precluded. J., Rockoff, re N. J. (Pashman, (1974) concurring); J., I write now to (Pashman, concurring). (1975) my reiterate those note my principles adherence to concern with the Court’s continuing present posture area of result herein troublesome ethics. The professional dual continues Court’s acceptance full where, disclosure notwithstanding circumstances client,1 the derivative the intrinsic de consent knowing of divided is so intolerable that allegiance pro gree on exercise of in attorney’s scribed adverse effect on behalf of that client must dependent professional judgment D.R. ipso conclusively 5-105(B). See presumed.2 facto In so fiction a lay the Court relies doing, can client dual effectively per consent to cruel petuates myth can be adequate representation provided such cases who can supposedly *12 adverse simultaneously protect inevitably interests of his course, masters. reality, two of it is well-nigh is for the derivative be well attuned impossible client to so to the numerous nuances the transaction that legal of representation by 1The derivative client is the client whose at torney participation party derives from his in a with transaction primary attorney. who is the client of the The derivative client is the client to whom is made and from whom disclosure consent sought. the dual is Supreme Advisory Jersey 2See New Court Committee on Profes Ethics, Opinion 212, (1971) (improper sional N. J. L. J. 553 attorney represent party for to continue either to real estate controversy them). transaction after has arisen between The pro- informed.3 truly can said to have consent obtained consent so effect of priety according dispositive acknowledged frankly when is is further undermined aon reliance derivative client’s is induced by the consent — the be fulfilled which cannot attorney promise of his two clients. of each promise adequate economic naive to the is not so as the Court Surely would in- stance utopian transactions its realities such dis- are potentially interests which Any conflicting dicate. (cid:127) —(cid:127) the consummation expeditious of the ultimate goal ruptive — be resolved inevitably must sales transaction will same reason and for that favor client primary deriv- attention of the brought not even be probably more aggravated This is even ative client. problem case of the instant where the such as those circumstances with whom the developer сlient of the primary relation- profitable has a long-term potentially has a substantial economic the attorney ship. Consequently, controversy closing frequent topics are: at most 3The quality A) title deliverable the seller. Difficulties with B) Disputes alleged defects. over structural C) Warranties. D) work. Unfinished E) Leaks. E) problems. Cellar development 6) in the sidewalks roads and Construction schedule. H) Drainage problems. I) as to utilities. Problems masonry J) Defective foundations. — n Mortgage K) amount interest. tax escrows compliance money part L) to assure seller’s Escrows of including problems, of funds. for release schedule above agreements compliance con- M) Appropriate remedies cerning above. problems within are, cоurse, variations of innumerable There subjects many general in addition to These are areas. above if the interest result conflicts intolerable as to which stage negotiation as well provides the contract dual closing of title. as at *13 stake in the continued this maintaining goodwill primary client. As our Advisory Professional Committee on Ethics has observed, in such situations * * 4 attorney, consciously unconsciously, the in either or will be economically profitable, fluenced a desire to maintain his relation ship developer sell, with the seller. The hence has more homes profitable professional attorney. employment more The desire the relationship any given to maintain his will in it difficult case make attorney buyer for the to devote himsеlf interests of a to the degree vigor loyalty the same and undivided which would be the present. may very case were such desire not This motivation probably be, attorney’s representation buyer cause the the less searching, demanding general less in less effective than be would the case were the loss of not reluctant to risk the what profitable monopoly. for him has become point, first, A second interrelated with from stems the fact attorney acquires very knowledge that extensive intimate developer question and of the tract in as the of the work result developer carries out for If he will not be able owner. willing rapidly represented, to construct roads as if a sub- as is doing well, drainage problems contractor is not his if work exist sоlved, question if have not been is a as to when and there how all introduced, example only, masonry if, will utilities be as an proven defective, foundations of in various homes have perforce possess knowledge. only each case will this These Anyone possibilities. few of the had who has direct contact with projects examples of this sort will able to add other from be his experience. Undertaking representation, own a dual impossibly equivocal position. represent- will find himself in an As ing seller, proper he must all use reasonable means to see proposed property consummated; sale of client’s his representing buyer, obligation has reveal informa- he an genuine help buyer tion which would be interest or in de- termining purchase protecting rights whether to make the apparent signed. after the contract has been obligation It is twofold attorney’s cannot be met circumstances where the any fact, knowledge him embraces known to as the result of his relationship seller, buyer, might which, if known to the reject purchase upon him or to insist or con- influence terms ditions less favorable to the seller. above, very interrelationship As mentioned there is a be- definite sought two factors existence of which we tween these emphasize. have general they present ordinary will not iso- buyer attorney represents both lated transaction where and seller. they would On the other hand seem to be endemic the kind of
17 considering. Accordingly, situation it seems clеar unless we any given fail to exist in case these factors for some reason complete point of influence can minimized to unless their impediment insignificance, they insurmountable constitute representation being kind of dual here considered. Jersey Supreme [New Court Advisory Professional on Committee Ethics, Opinion 51, L. J. 87 J. added)] (1964), (emphasis “ordinary in an that dual Even assuming se imper- not he per should transaction isolated” real estate where the at- wholly unsupportable missible, is practice at- The developer. is the representative involved torney in safeguarding be vigilant economic disincentive torney’s and a se per is strong, such a case too interests in buyer’s in Dual representation imperative. absolutely is prohibition client to play derivative forces these circumstances Court’s continued countenance the I cannot deck. stacked behavior by duplicitous and often such farcical tolerance injustice of this of the legal profession. members some in what for most con- occurs fact that it is heightened and financial greatest personal the transaction is sumers need for which their adequate lifetime in their moment ' n acute. is con- continuing this Court’s distressed by am similarly I dual representation, “limited” concept of the donation 595 - 596 In 40 N. re Kamp, first sanctioned limitation client’s consent the derivative By securing his plenary repre addition to attorney, duty, on his derivative client, “represents” the primary sentation of title closing matters involved as to some also client what this arrange terms practical not to others. but table, moments after that at settlement ment means derivative client’s acted on behalf of the having purportedly “former” client and act will turn on interest, the client as to mat primary for the advocate as the solely One can readily representation. from dual reserved ters as he derivative client sees the bewilderment imagine from in matter of sec- ally enemy transformed onds. when he He didn’t for that result bargain gave his “consent” to the limits of the dual he would receive. allow an not to certain press Agreeing with agreeing matters behalf is not your equatable in- This you. have him matters very against those press tragic. so situation would be ludicrous were congruous *15 an arrаngement, Yet the Court sees fit to perpetuate the at- which in a travesty is less than reality nothing torney-client concept the very and mocks relationship an professionalism permitting lawyers. impropriety The a client adversary act both the advocate and in a for statement. transaction is even single too obvious more palatable Court fails to make its position for the that noting meaningful independent un- instant would have purchasers transactions likely event because of occasioned “rigidities” “fed- the fact-that involved was under the-housing program I eral am not auspices.” represen- persuaded inadequate that tation should because on occasions acceptable adequate some not bear fruit. representation might any significant of a se per Moreover, adoption that assumption the Court’s a real estate transaction prohibition dual representation means from would modest being somehow prevent persons likely The more result of at all is unwarranted. represented a se gravity rule will be to alert such per persons them to impel transaction and contemplated consequently it is not regard counsel. this inap secure their own access by for us notice the propriate greater consumers information the cost of services as result concerning legal in this era. post-Bates4 Considering of fee advertising state, number of is more than adequate attorneys it in such that very likely relatively uncompli Association, 350, Bar 4Bates Arizona State 433 U. S. S. Ct. v. 97 L. Ed. 2d 810 mod real, cated matters as residential estate settlements at Furthermore, the cost erate fees will be available. readily an incre normally only counsel obtaining independent is addition to cost transaction mental of the entire if were they that most would bear purchasers cost willingly aware The assumption of its benefit. potentially significant that such will persons legal representation totally forego rather than additional spending relatively insignificant for an at best. Naturally, many amount is dubious purchasers will avoid a at the leap purportedly opportunity extra when unnecessary they are into be expense misled them that can and will lieving give seller’s cost effective fоr free or at lesser equally than if However, obtained they their own representation.5 does not follow of dual necessarily prohibition repre sentation will most deprive purchasers of the services attorney.
Were these induced to believe purchasers of the derivative would receive quality representation they from the seller’s attorney is equivalent any representa- they counsel, tion could receive from their own it is reason- *16 able to assume would that have obtained they independent short, In the Court allows dual representation. representa- a tion to be self-justifying practice accepting theory non its sine role in of qua provision that housing per- regard noteworthy 5In this it the instant case the de- agrеement veloper’s following standardized of sale contained speeially provision: inserted purchaser attorney, pay legal If uses seller’s the seller will recording examination, mortgage, survey, for of deed fee title mortgage insurance, appraisal inspection title fees. saving purchasers resulting for The substantial from their quite persuasive, of seller’s makes offer utilization this acceptance. and vitiates the voluntariness its fails Court ta implications although comment on the ethical this clause a func tionally practice Kamp, indistinct was condemned in re 588, 598 sons of limited means is fact proven by that so many per- sons consent to it. I am unable to concur that assessment. The incidence of exploitation unsoрhisticated purchasers as- a result -of the loyalties an conflicting attorney with “two clients” counsels our against such tenuous making as- sumptions.
'It is virtually impossible for an attorney to contend for th'át which duty to another client him requires to oppose. This impossible fact pattern prevents fulfillment undivided loyalty owed aby lawyer client. We must decisionally by Canons Ethics discourage from taking any chances where highly charged po- tential for conflict exists. Misconduct be found may despite disclosure and consent.
Absent any demarcation of line which explicit beyond attorneys tread at area their in this of ethical peril murky behavior, I believe it is broaden Court to inappropriate concept a find- type consent to avoid required ing of impropriety and then to in an ex apply post facto manner to the conduct of the before particular respondent us. Is it fair premise of misconduct finding prac- tice whose ethically violative has only day nature explicitly defined? I not, think and for that reason dissent frotii the disciplinary action taken Mr. Dolan against for con- duct only technically under the improper present state of law and which would in all likelihood not have occurred Court has provided if-this with the needed attorneys guidance the first place. By starkly dramatizing plethora pit- falls which await attorneys who are foolhardy t-o enough n chance in this misstep area of precipitous professional n ethics,this case underscores the need critical for a se per -prohibition of dual which will deter attorneys ;at the threshold of that journey. hazardous ' While I concur in the reprimand respondent for the *17 n (cid:127)conduct described Section II of the Court's opinion, I hasten to add my comments herein on the issue of mul- par- Mr. Dolan’s are not addressed tiple representation re- fact life conduct. It is an unfortunate ticular the razor’s edge not alone in spondent treading at he was in technical However, compliance ethical behavior. there is formulated, rules as the disciplinary presently multiple valid basis for sanction for the no imposing record. disclosed in J., in the reprimand.* Pashman, concurring For Justice Justices Hughes, reprimand —Chief Moun- and Clifford Sullivan, Judge tain, Pashman Con- ford — 6.
Opposed—None. OF FILED BY MATTER OF THE REVISION RATES IN THE REDI-FLO OF NEW JERSEY INCREAS- CORPORATION ITS RATES. ING THE NESS, OF ADVOCATE VAN PUBLIC C. STANLEY APPELLANT, JERSEY, v. REDI-FLO OF NEW STATE CORPORATION, IN BUSINESS DOING A CORPORATION JERSEY; PUB- OF DEPARTMENT STATE OF NEW THE UTILITIES, UTILITY COMMIS- PUBLIC OF BOARD LIC SIONERS, RESPONDENTS. April 6, Argued March 197 7 Decided 1978. majority opinion. *only II of as to the. §