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In re Petition for Review of Opinion 552 of Advisory Committee on Professional Ethics

Decided: April 9, 1986.

IN THE MATTER OF THE PETITION FOR REVIEW OF OPINION 552 OF THE ADVISORY COMMITTEE ON PROFESSIONAL ETHICS


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

For modification: Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed: none. The opinion of the Court was delivered by Handler, J.

Handler

The issue in this case is whether a municipal attorney may represent both the municipality and individual officials or employees of that municipality when all have been sued as co-defendants in a civil rights action under 42 U.S.C. § 1983. The Supreme Court's Advisory Committee on Professional Ethics (ACPE or Committee) ruled in Opinion 552 that it is never proper for an attorney simultaneously to represent a governmental entity and any of its officials or employees when they are co-defendants in such a civil rights action. We granted motions by interested parties for a meritorious review of Opinion 552. For the reasons stated in this opinion, we modify the determination of the ACPE.

I.

Resolution of the ethics issues addressed by Opinion 552, 115 N.J.L.J. 96 (1985), requires an overview of 42 U.S.C. § 1983 and the kinds of law suits that may be brought under this enactment. The statute provides:

[E]very person, who under color of any statute, ordinance, regulation, custom or usage of any state or territory or the District of Columbia, subjects or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity or other proper proceeding for redress.

The rights protected under this enactment are principally (1) due-process rights, (2) equal-protection rights, (3) privileges and immunities of citizens, (4) rights owing their existence to federal functions, and (5) rights created by federal statutes. C. J. Antineau, Federal Civil Rights (1971).

While § 1983 refers to the culpable party as "every person," local government entities, as well as their individual officials and employees, can be held accountable under § 1983. Monell v. New York City Dept of Soc. Servs., 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611, 635 (1978). To recover from an official or employee, it is enough to show that such a person acting under color of state law caused the deprivation of a federal right. Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961). In contrast, local governmental bodies are liable under § 1983 only for wrongful actions that were taken to implement or execute a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body. Monell v. New York City Dept of Soc. Servs., supra. Significantly, local government bodies are not liable under § 1983 on a respondeat superior theory for every deprivation inflicted under color of state law by a local official. Id. 436 U.S. at 691, 98 S. Ct. at 2036, 56 L. Ed. 2d at 636. It is evident therefore that under varying circumstances an aggrieved person can sue either a local government official, or the government entity that employs the official, or both, and different remedial relief will be available in terms of the identities of the parties-defendant. When both an entity and official are named as defendants, a conflict of interest between them may arise. This actual or potential conflict of interest poses the ethical issue that is the crux of Opinion 552.

In a § 1983 suit against both the governmental entity and individual government officials, the governmental entity, in an effort to shift liability, may claim that the assertedly wrongful conduct of the individuals was unauthorized and outside the scope of the employment. Conversely, in his or her defense, an employee-defendant may claim that the alleged offending conduct was taken pursuant to an official governmental policy or directive and that the governmental entity is the party properly responsible and ultimately liable. Thus, under the defenses asserted or available, one party-defendant may seek to avoid or lessen its exposure at the expense of the other.

The Committee in Opinion 552 recognized that where a governmental official or employee has been named as a co-defendant in a § 1983 civil rights action against a municipality, the attorney who undertakes representation of both defendants may be in a situation of potential conflict. Indeed, the Committee was of the view that a potential conflict of interests was almost invariably present in these situations, and therefore such potential conflicts could be overcome effectively only by an absolute prohibition against multiple representations. The Committee considered that an alternative approach consisting of an ad hoc avoidance of conflicts of interest on an individual, case-by-case basis was too uncertain and inconsistent to be the basis for a satisfactory and workable rule. Ibid.

We agree with the Committee that there is undoubtedly a concern here for potential conflicts. However in view of the fact that in certain § 1983 actions no conflict of interest problems will ever exist, or that in others the cause may be summarily disposed without factual controversy as to the respective roles of the defendants, an absolute rule requiring separate counsel at the initial pleading stages is not required to adhere to traditional ethical precepts. We believe that where a potential conflict of interests may be present, it is not necessary to abandon the ethics guidelines of the Rules of Professional Conduct, which control generally the responsibility of attorneys

confronted with conflicts of interests in the ...


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