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Perillo v. Advisory Committee on Professional Ethics

Decided: July 1, 1980.

SALVATORE PERILLO, CORPORATION COUNSEL FOR THE CITY OF NEWARK, APPELLANT,
v.
THE ADVISORY COMMITTEE ON PROFESSIONAL ETHICS, RESPONDENT. CORPORATION COUNSEL OF THE CITY OF PATERSON, APPELLANT, V. OPINION 423 OF THE ADVISORY COMMITTEE ON PROFESSIONAL ETHICS, RESPONDENT



On petition for review of an opinion of the Advisory Committee on Professional Ethics.

For modification and affirmance -- Chief Justice Wilentz and Justices Sullivan, Pashman, Clifford, Schreiber, Handler and Pollock. For reversal -- None. The opinion of the Court was delivered by Handler, J.

Handler

[83 NJ Page 369] On this appeal the Court is asked to review Opinion 423 of the Supreme Court Advisory Committee on Professional Ethics ("ACPE" or "Advisory Committee") pursuant to R. 1:19-8. The subject matter of Opinion 423 is related directly to two earlier Advisory Committee opinions, Opinion 400, 102 N.J.L.J. 73 (1978), and Opinion 410, 102 N.J.L.J. 451 (1978). The broad issue raised here by the challenges to Opinion 423, and, by implication, to Opinions 400 and 410, involves the appropriate representational responsibilities of municipal attorneys drawn into adversarial proceedings against municipal employees. More specifically, the question posed is whether it is proper for a municipal prosecutor

or any other member of a municipal law department to represent the interests of the municipality against those of its employees, particularly its police officers, in municipal court actions and departmental hearings, such as civil service or disciplinary proceedings at the local level, as well as in subsequent appeals of such matters before state administrative agencies and the courts.

Opinion 423, published at 103 N.J.L.J. 481 (1979), was based upon an inquiry by an assistant city attorney on behalf of his six-person municipal law department. The Advisory Committee, drawing support from its prior Opinions 400 and 410, ruled that there is an ethical prohibition applicable to all members of the municipal law department from "acting as prosecutor" in such proceedings. Ibid. This Court received and granted petitions for review of this ethics opinion. 82 N.J. 269 (1979).

We now hold that a municipal attorney cannot undertake to represent the municipality or its interests in any administrative or judicial proceedings against municipal employees where, because the attorney has had regular and frequent contact with such employees in the course of handling municipal business, a person generally familiar with the affairs of the municipality could reasonably believe that an attorney in such a position would be subject to and hindered by a professional conflict of interest. Our holding is based substantially upon the appearance of ethical impropriety which, although not fully articulated in Disciplinary Rule 9-101, is nevertheless a basic ethical concept.

I

Opinion 423 specifically addressed the propriety of any member of a six-person municipal law department "prosecuting city employees, including members of the police department, in departmental [ i.e., disciplinary] hearings at the local level and on subsequent appeals to administrative agencies (civil service) and the courts." 103 N.J.L.J. at 481. The Advisory Committee concluded that this inquiry was related to that considered in

Opinion 400, supra, 102 N.J.L.J. at 80, in which it determined that it is unethical for a municipal attorney either to represent a police officer charged with a disorderly persons offense or an indictable offense or to prosecute a police officer "in the same municipality." It also considered Opinion 410, supra, 102 N.J.L.J. at 451, to be directly related. The ACPE there determined that it is unethical for a municipal prosecutor to represent the city police department against a municipal police officer at a departmental hearing. The identical basis for all three ethics opinions, each disapproving the representation, was that such conduct by the municipal attorney or any member of the law department professional staff would impermissibly promote the appearance of conflict of interest since all municipal employees, including counsel, are, in the words of the Advisory Committee, "'on the same team.'" Opinion 423, supra, 103 N.J.L.J. at 481.

Appellant Salvatore Perillo, Esq., Corporation Counsel for the City of Newark and head of that city's eighteen-member municipal law department, claims that "Opinion [423] prohibits him from exercising the responsibilities and duties as Chief Law Officer for the City of Newark" as conferred upon him by statute, N.J.S.A. 40A:9-139, and implemented by ordinance, Newark Rev. Ordinances, ch. 6, art. I, § 2:6-1 et seq. (1966), viz:

The corporation counsel shall be the chief law officer of the city and the attorney of record in all proceedings wherein the city or any of its officers, boards, bodies or commissions, by reason of any suits growing out of their official position, shall be a party. He shall advise all city officials and bodies on any matters relating to the city government, when requested to do so. He shall supervise the preparation of all contracts, deeds and other documents and all statutes, ordinances and resolutions referred to the law department for preparation. [ Id., § 2:6-3.]

His subordinates in the law department are by extension also charged with these same duties. Id., §§ 2:6-1, 2:6-8.

This same position is advanced by appellant Henry Ramer, Esq., Corporation Counsel for the City of Paterson, who heads that city's nine-member law department. The Paterson ordinance implementing N.J.S.A. 40A:9-139 includes the requirement that the Corporation Counsel "shall . . . [p]repare, when authorized by the council or other city ...


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