Can an attorney who also serves as a municipal clerk represent defendants in that municipality's municipal court?

Plain-English summary

The Committee was asked whether there is any impropriety in an attorney who is also a municipal clerk representing defendants in the municipal court of the same municipality. The Committee concluded that such conduct is improper.

It reasoned by analogy to Rule 1:26-3, which prohibits an attorney who is a member of the governing body of a municipality from practicing before its municipal court, and held the same principle applies to a municipal clerk who is an attorney. As clerk, he is identified in the public eye with the affairs of the municipality in general, so he should avoid retainers where he is, or may appear to be, opposing action by the municipality on behalf of a private client.

The Committee added that, just as with a municipal attorney representing a private client before a municipal agency, the losing litigant or the public would be troubled by the suspicion that the adversary's success was attributable to his position or influence as a municipal official, citing its Opinion 4.

Currency note

This opinion was issued in November 1963, before New Jersey's September 13, 1971 adoption of the Disciplinary Rules (Code of Professional Responsibility), and well before the 1984 Rules of Professional Conduct and all later revisions. It applied the conflict-of-interest principles of the former Canons of Professional Ethics and Rule 1:26-3; such conflicts are now analyzed under RPC 1.7. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.

Common questions

Q: Could an attorney-municipal clerk defend people in the same town's municipal court?

A: No. The Committee held the conduct improper, applying the rule that bars a municipal governing-body member from practicing before its municipal court.

Q: Why did the clerk's public role matter even outside formal governing-body membership?

A: The Committee reasoned that the clerk is identified in the public eye with the municipality's affairs, so the public or a losing litigant could suspect that his official position influenced the outcome.

Background and rules framework

The opinion drew on Rule 1:26-3 (barring a municipal governing-body member from practicing before the municipal court) and the conflict principles of the Committee's Opinion 4 under the former Canons of Professional Ethics. The conflict analysis is now found in RPC 1.7 (conflict of interest, current clients).

Citations and references

Rules of Professional Conduct (as in effect at the time):

• Former Canons of Professional Ethics (conflict of interest)
• N.J. Rule 1:26-3 (governing-body member practicing before municipal court)

Other opinions cited:

• N.J. ACPE Opinion 4, 86 N.J.L.J. 357 (1963)

See also

• NJ ACPE Op. 18: Counsel to a City Housing Authority
• NJ ACPE Op. 15: Zoning Board Member Representing Private Clients
• NJ ACPE Op. 649: Private Practice by Attorneys Serving as County Clerks

Source

• Landing page: https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp11-1.html

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

86 N.J.L.J. 621
November 7, 1963

OPINION 11

Conflict of Interests
Municipal Clerk

The question has been presented as to whether there is any impropriety in an attorney who is also a municipal clerk representing defendants in the municipal court of the same municipality.

It is the opinion of the Committee that such conduct is improper. R. 1:26-3 prohibits an attorney who is a member of the governing body of any municipality from practicing before its municipal court. The same principle is equally applicable to the case of a municipal clerk who is an attorney. As such clerk, he is identified in the public eye with the affairs of the municipality in general. He should avoid retainers from others where he is or may appear to be opposing action by the municipality on behalf of a private client. Just as in the case of a municipal attorney representing a private client before a municipal agency, the losing litigant, or the public in general, will be troubled by the suspicion that his adversary's success in the matter was attributable to his position or influence as a municipal official. See N.J. Advisory Committee on Professional Ethics, Opinion 4, 86 N.J.L.J. 357 (1963).