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In re Opinion 662 of Advisory Committee on Professional Ethics

Decided: July 8, 1993.

IN RE OPINION 662 OF THE ADVISORY COMMITTEE ON PROFESSIONAL ETHICS


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

For disapproval -- Chief Justice Wilentz, and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. The opinion of the Court was delivered by O'Hern, J. Clifford, J., Concurring. Clifford, J., Concurring in the result.

O'hern

The question in this case is whether an attorney, or an attorney and associate (by "associate" we mean partner, associate, or one sharing offices) may simultaneously serve as municipal attorney and as municipal prosecutor in the same municipality. The Advisory Committee on Professional Ethics (ACPE or Committee) determined that neither an attorney nor an attorney and associate may hold both positions. The Committee reasoned that the public would believe that the municipal prosecutor might fail to bring independent judgment to prosecution under ordinances that the attorney or associate had drafted or in matters on which the attorney or associate had advised the municipal body. The petitioners are individual attorneys or attorneys and associates who hold the office of municipal attorney and prosecutor for several municipalities, including the Boroughs of Allentown, Peapack, Gladstone, and Seaside Heights. The petitioners requested review of the opinion under Rule 1:19-8. The Committee stayed its opinion pending our decision. We now hold that an attorney, or the attorney's associate, may serve as municipal attorney and municipal prosecutor of the same municipality. Attorneys or firms whose members choose to hold both positions should be aware of any appearance of impropriety and recuse themselves on a case-specific basis when warranted.

I

In Opinion 516, 111 N.J.L.J. 481 (1983), the ACPE "noted the high percentage of inquiries to this Committee that arose out of relationships between lawyers and governmental agencies in which a lawyer or his office associates occupied positions." It wrote: "We have now published well over 500 opinions and the percentage

of inquiries relating to the aforesaid subject matter has not appreciably declined." Ibid. The Committee suggested that a "reference to a standard relating to the avoidance of an appearance of wrongdoing might resolve most of these inquiries." Ibid.

The standard is indeed very workable. Of the hundreds of opinions rendered by the Committee on this subject, we have reviewed but a few. In its first-published opinion, Opinion 4, 86 N.J.L.J. 357 (1963),*fn1 the ACPE established the appearance-of-impropriety standard that it has used to evaluate conflicts of interest in multiple representation of municipal agencies and private clients. (The gender references reflect only the circumstances of the time.) Opinion 4 held that a municipal attorney could not represent private clients before the zoning board of adjustment of the municipality because

[i]n a broad sense an attorney representing a municipality or any of its agencies has as his "client" the entire municipality, and he should avoid any retainers from others which may place him in a position where he appears to be either seeking relief or favor from the municipality or any of its agencies for a private client or to oppose action by the municipality or its agencies on behalf of a private client. If he did so, it would be inevitable that, if he were successful, the losing litigant, or the public in general, would be troubled by suspicion that his success in the matter was attributable to improprieties and that his position or influence as a municipal attorney might have furthered the cause of the private client. [ Ibid. ]

Opinion 5, 86 N.J.L.J. 361 (1963), filed the same day, held that an attorney who serves as municipal prosecutor is actually serving as an attorney for the municipality and should equally be prohibited from appearing before the zoning board of adjustment or other local agencies. In refining that standard the Committee explained that "[a]n attorney should not only avoid all impropriety, but should likewise avoid the appearance of impropriety." Opinion 8, 86 N.J.L.J. 718 (1963).

The Committee has repeated that theme continuously in its various applications. See, e.g., Opinion 53, 87 N.J.L.J. 610 (1964) (holding that part-time municipal prosecutor could not represent

client's appeal from that court); Opinion 11, 86 N.J.L.J. 718 (1963) (holding that attorney who is municipal clerk may not represent defendants in municipal court). In each such case, "The real problem lies in the fact that the [attorney] is part of the official family of the municipality." Opinion 322, 99 N.J.L.J. 126 (1976). When such an attorney proposes to represent an interest adverse to the municipality's, the public may reasonably infer that the attorney's status as part of the official family gives the client an unwarranted advantage.

The ACPE has adopted the same general standard to identify conflicts in representing different agencies of the same municipality. In Opinion 67, 88 N.J.L.J. 81 (1964), the ACPE ruled that whether an attorney may represent various boards or agencies in the municipality, such as the planning board, zoning board, or health and education boards, depends on whether "there is or may be a conflict of interest in a particular situation." It has applied that doctrine on a case-by-case basis. Thus, in view of the autonomous character of the board of education, Opinion 44, 87 N.J.L.J. 297 (1964), held that if one member of the law firm were a council member in a municipality, another member of the law firm could serve as attorney for the board of education if the board of education were an elected body that selected its own employees without any consent or approval of the municipal council. The Committee expressed a note of caution that conflicts may arise requiring both attorneys to disqualify themselves such as in the transfer of municipal lands to the board of education. The autonomous character of the municipal agency was also important in Opinion 39, 87 N.J.L.J. 191 (1964), which held that a municipal attorney could properly represent the local board of education except in matters related to the municipality itself. See also Opinion 300, 98 N.J.L.J. 126 (1975) ...


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