Can an assistant municipal attorney represent a client in a claim against the board of education that the municipality's governing body appoints?

Plain-English summary

The inquiry concerned whether an attorney could represent a workers' compensation petitioner in a claim against the board of education of the municipality in which the attorney was employed as an assistant municipal attorney. The board of education was an appointed board under Chapter 12 of Title 18A.

The Committee relied on its Opinion 77, 88 N.J.L.J. 453 (1965), which held that an attorney who was an appointed member of a board of education could not properly represent private clients before other municipal agencies such as the board of adjustment, planning board, or housing authority. It explained that because such a board is appointed by the municipality, and a board of school estimate with municipal representation held veto power over the school budget, the appointed board lacked the autonomous nature of an elected board and was subject to a degree of municipal control.

The Committee restated its repeated holding that an attorney employed by one agency of a public body may not appear for or against other agencies of the same public body, because such representation "cannot help but give rise to suspicion that, by virtue of being members of the same official ... family, they have influence which could be asserted on behalf of such client beyond that possessed by other members of the bar" (Opinion 106). It therefore held it would be improper for the municipal attorney to prosecute a claim against the board of education appointed by the members of the municipal body he represented.

Currency note

This opinion was issued in December 1968, 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 Canons of Professional Ethics and the "official family" / appearance-of-impropriety line of the Committee's opinions; note that the 2004 revisions abolished the freestanding appearance-of-impropriety standard. Conflicts of this kind are now analyzed under RPC 1.7 and, for government lawyers, RPC 1.11. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific requirement mentioned here.

Common questions

Q: Why can't the assistant municipal attorney bring a claim against the school board?

A: The Committee treated the appointed board of education as an agency of the same public body the attorney serves, and held that an attorney for one agency may not appear against another agency of the same body.

Q: Did it matter that the board of education was appointed rather than elected?

A: Yes. The Committee, following Opinion 77, stressed that the appointed board lacked the autonomy of an elected board and was subject to municipal control, including budget veto power through a board of school estimate.

Background and rules framework

The opinion applies the Committee's settled rule, drawn from Opinions 77, 41, and 106, that a lawyer serving one agency of a public body may not represent interests adverse to another agency of the same body. The animating concern is the "official family" suspicion of undue influence, an appearance-of-impropriety rationale. In current New Jersey terms, the question is a concurrent conflict under RPC 1.7, with RPC 1.11 governing the obligations of government lawyers.

Citations and references

Other opinions cited:

• NJ ACPE Opinion 77, 88 N.J.L.J. 453 (1965): appointed school-board member may not represent private clients before other municipal agencies
• NJ ACPE Opinion 41, 87 N.J.L.J. 285 (1964)
• NJ ACPE Opinion 106, 90 N.J.L.J. 97 (1967): "official family" suspicion of influence

See also

• NJ ACPE Op. 141: Health Board Attorney Conflicts

Source

• Landing page: https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp137-1.html

Original opinion text

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

91 N.J.L.J. 797
December 12, 1968

OPINION 137

Conflict of Interest Municipal Attorney Suing School Board

This inquiry concerns the propriety of an attorney representing a workmen's compensation petitioner in a claim against the board of education of the municipality in which the attorney is employed as an assistant municipal attorney. The inquirer advises that the board of education in the municipality is an appointed board under Chapter 12 of Title 18A of the New Jersey Statutes.

In our Opinion 77, 88 N.J.L.J. 453 (1965), we held that an attorney who was an appointed member of a board of education under Chapter 6 of R.S. 18 (now Chapter 12 of N.J.S. 18A), could not properly represent private clients before other municipal agencies such as the board of adjustment, planning board, housing authority, etc. We noted that the board in such cases is appointed by the municipality and that the chapter (now Chapter 22 of N.J.S. 18A) also provided for the appointment of a board of school estimate with municipal representation which had veto power over the budget prepared by the school board. Such control deprived the board of education of its autonomous nature and subjected it to a degree of municipal control not found in the case of an elected board. Cf. our Opinion 41, 87 N.J.L.J. 285 (1964).

We have repeatedly held that an attorney employed by one agency of a public body may not appear for or against other agencies of the same public body. Such representation by attorneys is proscribed because it "cannot help but give rise to suspicion that, by virtue of being members of the same official ... family, they have influence which could be asserted on behalf of such client beyond that possessed by other members of the bar." Opinion 106, 90 N.J.L.J. 97 (1967).

We, therefore, hold that it would be improper for the municipal attorney in this case to prosecute a claim against the board of education which is appointed by the members of the municipal body which the attorney represents.