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In re Advisory Committee on Professional ethics

February 15, 2000

IN RE: ADVISORY COMMITTEE ON PROFESSIONAL ETHICS, DOCKET NO. 18-98


The opinion of the court was delivered by: O'hern, J.

Argued September 13, 1999

On Petition for Review of Final Judgment of Advisory Committee of Professional Ethics.

The question in this case is whether an attorney may simultaneously serve as municipal attorney and as clerk-administrator for the same municipality. The Advisory Committee on Professional Ethics (Committee or ACPE) determined that an attorney may not hold both positions. The Committee concluded that such dual office-holding creates an actual conflict of interest and otherwise gives rise to an appearance of impropriety. The Committee reasoned that the municipal attorney might fail to bring independent judgment to evaluation of the conduct in office of the clerk-administrator. We granted petitioner's request, 157 N.J. 643 (1999), to review the opinion under R. 1:19-8. We agree with the ACPE that an attorney may not simultaneously hold the positions of municipal attorney and clerk-administrator under the circumstances outlined in this petition, although we confine our reasoning to the finding of an impermissible potential conflict of interest.

I.

Petitioner had served the Borough of Old Tappan as its borough attorney for ten years when the Mayor and Council expressed an intention to appoint him to the position of clerk-administrator. Petitioner sought an advisory opinion from the Committee to determine whether he could hold both positions. In response to petitioner's inquiry, the Committee ruled

that an attorney called upon to serve as both municipal solicitor and municipal administrator would be unable to provide the full panoply of legal services expected of him without such service being affected by the lawyer's own interests, a conflict of interest to which the municipality cannot consent, or otherwise causing an ordinary knowledgeable citizen acquainted with the facts to conclude that multiple service poses a substantial risk of disservice to the public interest.

The Committee cited R.P.C. 1.7, which states in pertinent part:

(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless: (1) the lawyer reasonably believes the representation will not be adversely affected; and (2) the client consents after a full disclosure of the circumstances and consultation with the client, except that a public entity cannot consent to any such representation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.

(c) This rule shall not alter the effect of case law or ethics opinions to the effect that:

(1) in certain cases or categories of cases involving conflicts or apparent conflicts, consent to continued representation is immaterial, and (2) in certain cases or situations creating an appearance of impropriety rather than an actual conflict, multiple representation is not permissible, that is, in those situations in which an ordinary knowledgeable citizen acquainted with the facts would conclude that the multiple representation poses substantial risk of disservice to either the public interest or the interest of one of the clients.

Petitioner has furnished us with copies of the relevant Borough ordinances. The duties of the borough clerk are described as follows:

[t]he borough clerk shall serve as clerk of the council, . . . attend all meetings of the council and keep the minutes of the proceedings of the council. The minutes of each meeting of the council shall be signed by the officer presiding at the meeting and by the clerk . . . . The clerk shall record all ordinances in books to be provided for that purpose . . . . The clerk shall have custody of and safely keep all records, books and documents of the borough . . . . The clerk shall maintain a record of all real property which the borough may acquire, sell, or lease . . . . The clerk shall cause the corporate seal of the borough to be affixed to instruments and writings when authorized by ordinance or resolution of the council or when necessary to exemplify any document on record in his office . . . . The clerk shall be the repository for and custodian of all official surety bonds furnished by or on account of any officer or employee, . . . perform all the functions required of municipal clerks by the General Election Law, [and] . . . [a]dminister the provisions of borough ordinances with reference to the licensing of occupations and activities . . . . [Old Tappan, N.J., Rev. Ordinances § 2-6.1 to -6.8 (1975).]

The ordinance describes the responsibilities of the borough administrator as follows:

[the] borough administrator . . . shall . . . provide a liaison between the governing body and the various departments, bodies and other officials of the Borough of Old Tappan under the supervision and control of the mayor and council and to fulfill such other duties as shall be specifically assigned by the said mayor and council from time to time . . . . The duties of the borough administrator . . . shall not infringe upon the duties, rights and powers of other borough officers designated by statute or by borough ordinance . . . . The office of the borough administrator shall be held by the same person who holds the title of the borough clerk. [Id. at §§ 2-29.1., 2-29.4 (May 1997).]

Finally, the Old Tappan ordinance entitled "Borough Attorney" includes the following:

The borough attorney shall be appointed by the mayor with the advice and consent of the council for a term of one year. . . . The attorney shall not receive a fixed salary*fn1, but shall be paid such retainer as may be agreed upon and authorized by the council, plus such fees and charges as shall be deemed reasonable . . . . The attorney shall have such powers and perform such duties as are provided for the office of borough attorney by general law or ordinances of the borough. [The attorney] shall represent the borough in all judicial and administrative proceedings in which the municipality or any of its officers or agencies may be a party or have an interest. [The attorney] shall give all legal counsel and advice where required by the mayor and council or any member thereof, and shall in general serve as the legal advisor to the mayor and council on all matters of borough business . . . . [Id. at §§ 2-13.1, -13.2 (July 1978).]

The ordinance also describes the specific duties of the borough attorney that include drafting all legal documents, conducting appeals, entering into agreements, compromises or settlements on behalf of the borough, and rendering any opinions submitted by the mayor or council.

The Legislature has provided that a municipal council may appoint "a municipal manager, an assessor, an auditor, a treasurer, a clerk, and an attorney. One person may be appointed to two or more such offices, except that the offices of municipal manager and auditor or assessor shall not be held by the same person." N.J.S.A. 40:81-11 (emphasis added). Because the Legislature has expressly held the two offices to be compatible, we do not rely on the "appearance of impropriety" doctrine to disqualify petitioner on those grounds. After all, the test is whether "an ordinary knowledgeable citizen acquainted with the facts would conclude that the multiple representation poses substantial risk of disservice to either the public interest or the interest of one of the clients." R.P.C. 1.7(c). Surely, the members of the Legislature are better informed than "an ordinary knowledgeable citizen," yet they did not perceive a potential for conflict.

We agree also that the offices are not incompatible. In Reilly v. Ozzard, Chief Justice Weintraub stated the test: "Incompatibility is usually understood to mean a conflict or inconsistency in the functions of the office. It is found where in the established governmental scheme one office is subordinate to another, or subject to its supervision or control, or the duties clash, inviting the incumbent to prefer one obligation over another." 33 N.J. 529, 543 (1960)(holding that the common law did not prohibit a state senator from holding the position of municipal attorney); see also, Schear v. Elizabeth, 41 N.J. 321 (1964) (holding that municipal attorney could be a member of the planning board). Although the duties of borough attorney and clerk-administrator do not intrinsically clash, we must ...


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