Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re Supreme Court Advisory Committee on Professional Ethics Opinion No. 697

December 8, 2006

IN RE SUPREME COURT ADVISORY COMMITTEE ON PROFESSIONAL ETHICS OPINION NO. 697


On Petition for review of an opinion of the Supreme Court Advisory Committee on Professional Ethics.

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

This appeal requires that the Court re-examine the proscription governing concurrent representation by a lawyer or law firm of both a public entity and a private client before one of the boards or agencies of that public entity.

The law firm of Wilentz, Goldman & Spitzer, P.A., (Wilentz) posed two questions to the Advisory Committee on Professional Ethics (Advisory Committee): whether there was a per se prohibition against an attorney and his or her law firm serving as bond counsel for the governing body of a municipality and representing a private client before one of the boards or agencies (including the municipal court) of the municipality; and whether there was a per se prohibition against an attorney or law firm serving as special litigation counsel for the governing body and representing a client before one of the boards or agencies (including municipal court) of the municipality. The Advisory Committee formally responded by explaining that the inquiries were similar to another query recently addressed by the Committee in Opinion 697. Applying the reasoning of Opinion 697, the Advisory Committee determined that the contemplated representation would pose a direct conflict in violation of R.P.C. 1.7.

In Opinion 697, the Advisory Committee started from the proposition that "an attorney who represents a municipality or any of its agencies has as his client the entire municipality" and concluded that "once the client is determined to be the municipality itself, there would be a concurrent conflict in representing a private client before or against one of its subordinate instrumentalities." The Committee explained that "[counsel] representing an adjunct agency of a municipal government must make a choice as to whether they desire to represent the agency and thus preclude the practice by themselves and members of their firms before the various boards and bodies of the municipal government, or whether they believe it to be more advantageous to decline representation of the agency and represent private clients before the same public bodies." It further explained that, to aid practitioners in determining if a particular public body is an adjunct agency of a municipal government, the test is whether the agency is subject to the municipal government's budgetary, membership, or decision-making control.

Pursuant to Rule 1:19-8(a), Wilentz filed its petition for review before this Court, and the Attorney General responded. The Court granted the petition, and also granted the application of the State Bar Association for amicus status.

HELD: If the scope of an attorney's engagement by a governmental entity is limited and not plenary, that attorney and his or her law firm are not per se prohibited from representing private clients before the governmental entity or one of the boards or agencies of that governmental entity (including the municipal court), and the provisions of R.P.C. 1.8(k) shall govern all instances in which the attorney or law firm seeks to undertake such representation of private clients.

1. The general rule in respect of conflicts of interest is clear: "a lawyer shall not represent a client if the representation involves a concurrent conflict of interest." R.P.C. 1.7(a). Although clients can waive the conflict in writing, based on informed consent after full disclosure, "a public entity cannot consent to any such [dual] representation." R.P.C. 1.7(b)(1). In addition to this general rule, the Advisory Committee relied on Rule 1:15-3(b), which states that "[a] municipal attorney of any municipality shall not represent any defendant in the municipal court thereof, except to perform official duties . . . ." Based on what it viewed as the confluence of these two Rules and applying the "municipal family doctrine" (lawyer or firm may not represent two public agencies, boards or courts within the same public entity) the Advisory Committee concluded that if "the board, body, or authority at [] issue was a subordinate instrumentality of their municipal government [,then] the proposed representation of private clients before or against any other municipal agency was improper." It reasoned that in determining whether a particular body is an adjunct agency of a municipal government, "the test is whether the agency is subject to the municipal government's budgetary, membership or decision-making control." (pp. 12-14)

2. In its earliest opinion addressing conflicts of interest in respect of public entities, the Advisory Committee has stated expansively that an attorney representing a municipality or any of its agencies has as his or her client the entire municipality, and should avoid representing others which may place him or her in a position of appearing to seek relief or favor from the municipality or any of its agencies for a private client. Opinion 4, 86 N.J.L.J. 357 (June 27, 1963). The genesis of this view is found in the former R.P.C. 1.7(c)(2), which prohibited multiple representation involving a public entity based on the "appearance of impropriety" standard. As part of the 2004 amendments to the Rules of Professional Conduct, the Court eliminated the "appearance of impropriety" language in the Rules of Professional Conduct.

Contemporaneously, the Court adopted a specific Rule to address multiple representation issues in the context of public entities, prohibiting such representation where it would "limit the lawyer's ability to provide independent advice or diligent and competent representation to either the public entity or the client." R.P.C. 1.8(k). The Court explained that the shift in emphasis from the appearance of impropriety standard placed "an obligation on lawyers for public entities to assess whether client representation would present a substantial risk to the lawyer's responsibilities to the public entity." (pp. 15-18)

3. The Advisory Committee concluded that the inquiries posed by Wilentz involved an impermissible conflict of interest under R.P.C. 1.7, and therefore the Committee did not need to reach the question whether R.P.C. 1.8(k) applied. The Court disagrees with this conclusion, which is premised on the Advisory Committee's view of the interrelationship between and among members of the "municipal family." Each and every authority relied on by the Advisory Committee pre-dates the 2004 amendments to the Rules of Professional Conduct and is founded on the bedrock of the now-jettisoned "appearance of impropriety" doctrine. The elimination of that doctrine, however, requires that the Court re-examine and limit the scope of the "municipal family doctrine" to the contours of R.P.C. 1.8(k). The Court has determined to retain the "municipal family doctrine," but restricted to the relevant municipal governing body and its subordinate entities. Thus, if an attorney plenarily represents a municipal governing body, that attorney will be barred from representing private clients before the governing body and all of the entity's subsidiary boards and agencies, including its courts. If, however, an attorney plenarily represents an agency subsidiary to the governmental entity's governing body, that attorney will be barred from representing private clients before that subsidiary agency only. (pp. 18-24)

4. In response to Wilentz's first inquiry and consistent with R.P.C. 1.8(k), a law firm is not per se precluded from serving simultaneously as bond counsel for the governing body of a municipality and representing a private client before one of the boards, agencies, or municipal court of the municipality. Similarly, in response to Wilentz's second inquiry, a law firm is not per se precluded from serving simultaneously as special litigation counsel for the governing body of a municipality and representing a private client before one of the boards, agencies or municipal court of the municipality. These holdings, however, are limited, and should not be construed to relieve an attorney of the discrete obligations R.P.C. 1.8(k) imposes. Thus, an attorney who is employed by or represents a public entity must determine, before engaging in the representation of a private client, whether that representation will "present [] a substantial risk that the lawyer's responsibilities to the public entity would limit the lawyer's ability to provide independent advice or diligent and competent representation to either the public entity or the client." The "appearance of impropriety" standard no longer retains any continued validity in respect of attorney discipline. The provisions of R.P.C. 1.8(k) govern all instances in which a lawyer or a law firm employed or retained by a public entity seeks to undertake representation of another client before the public entity or its board or agencies, including its municipal court. (pp. 24-26)

The Advisory Committee on Professional Ethics Opinion No. 697 is REVERSED.

CHIEF JUSTICE PORITZ and JUSTICES LONG, LaVECCHIA and WALLACE join in JUSTICE RIVERA-SOTO's opinion. JUSTICES ZAZZALI and ALBIN did not participate.

The opinion of the court was delivered by: Justice Rivera-soto

Argued September 25, 2006

This appeal requires that we re-examine the proscription governing concurrent representation by a lawyer or law firm of both a public entity and a private client before one of the boards or agencies of that public entity. Responding to two specific inquiries posed by appellant Wilentz, Goldman & Spitzer, P.A., the Advisory Committee on Professional Ethics (Advisory Committee) concluded that an attorney, law firm, or office associates of that attorney or law firm, representing a municipal body subject to the governing entity's budgetary, membership, or decision-making control, is precluded from representing a private client before (or in a litigated matter against) the governing body, its executive, its legislature, any policy making official in an official capacity, or any office, department, division, bureau, board, commission, or agency, or other body subject to that governing entity's budgetary, membership, or decision making control, and specifically in this case, before the municipal court. [Opinion 697, 181 N.J.L.J. 536, 14 N.J.L. 1563 (Aug. 8, 2005) (footnote omitted).]

In light of the 2004 amendments to the Rules of Professional Conduct that eliminated New Jersey's long-standing prohibition against the appearance of impropriety and the contemporaneous adoption of R.P.C. 1.8(k),*fn1 we hold that the appearance of impropriety standard no longer retains any continued validity. We further hold that the provisions of R.P.C. 1.8(k) govern all instances in which a lawyer or a law firm employed or retained by a public entity, either as a lawyer or in some other capacity, seeks to undertake the representation of another client before that public entity or its board or agencies, including, if applicable, its municipal court. In respect of the application of R.P.C. 1.8(k), we reaffirm the continuing vitality of the "municipal family doctrine,"*fn2 albeit in a scope less expansive than the one urged by the Advisory Committee. We therefore reverse Opinion 697, and specifically hold that an attorney who plenarily represents a municipal governing body is barred from representing private clients before that governmental entity's governing body and all of its subsidiary boards and agencies, including its courts. However, an attorney who plenarily represents an agency subsidiary to the governmental entity's governing body is barred from representing private clients before that subsidiary agency only. Finally, if the scope of an attorney's engagement by a governmental entity is not plenary but limited, that attorney and his or her law firm are exempt from the strictures of the now-limited "municipal family doctrine;" however, the scope of the engagement is relevant in determining whether the proscriptions of R.P.C. 1.8(k) have been observed. In the final analysis, the response to the two specific inquiries posed by appellant in respect of limited scope engagements is that there is no per se bar.

I.

A.

This Court's authority to regulate the legal profession is of constitutional dimension. N.J. Const. art. VI, § 2, ¶ 3, cl. 2 (providing that "Supreme Court shall have jurisdiction over the admission to the practice of law and the discipline of persons admitted"); First Am. Title Ins. Co. v. Lawson, 177 N.J. 125, 139 (2003); see also In re LiVolsi, 85 N.J. 576, 585 (1981) (explaining that, since adoption of New Jersey's 1947 Constitution, "this Court has exercised plenary, exclusive, and almost unchallenged power over the practice of law in all of its aspects . . . ."). Exercising that jurisdiction, "[i]n 1984, th[is] Court adopted the Rules of Professional Conduct in an effort to harmonize New Jersey's standards with the Model Rules [of Professional Conduct of the American Bar Association (ABA)] and to provide clear, enforceable standards of behavior for lawyers." State v. Rue, 175 N.J. 1, 14 (2002) (formatting added).

More recently, revisions to New Jersey's Rules of Professional Conduct were suggested by the Pollock Commission. As one of the commentators on this subject explained, in 2001, the Supreme Court created a Commission to review New Jersey's R.P.C.s in light of the changes to the Model Rules made by the ABA's "Ethics 2000" Commission. New Jersey's Commission, chaired by retired Justice Stewart Pollock and known as the Pollock Commission, responded in 2002 with suggested revisions to New Jersey's R.P.C.s. . . . After a comment period and a public hearing, the Supreme Court adopted extensive amendments to the R.P.C.s and the Court Rules in November of 2003, to be effective on January 1, 2004. [Kevin H. Michels, New Jersey Attorney Ethics -- The Law of New Jersey Lawyering 4 (2006) (N.J. Attorney Ethics) (formatting added).]

That commentator also explained that "[p]erhaps the most significant change effected by the 2004 amendments to the R.P.C.s -- certainly the most anticipated -- was the elimination of New Jersey's 'appearance of impropriety' doctrine." Id. at 359.

That change, coupled with the contemporaneous adoption of new R.P.C. 1.8(k), lies at ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.