Can the attorney for a municipal board of health also sue the same municipality, represent private clients before its other boards, or defend cases in its municipal court?

Plain-English summary

The attorney for a board of health asked whether he could also represent clients who (A) had negligence claims against the same municipality that were unrelated to the board's jurisdiction, such as motor-vehicle or fall-down cases; (B) required representation before the same municipality's board of adjustment or planning board; or (C) were charged with motor-vehicle violations and were defendants in the same municipality's municipal court. He argued that a board of health is, by statute, an autonomous body separate and distinct from the governing body, not answerable to it, citing Borden's Condensed Milk Company v. Baker and Grosso v. Paterson.

The Committee held that even granting the board's autonomy, the board of health is still an agency of the municipality, drawing on its Opinion 79 (where it treated a municipal parking authority as "an agency and instrumentality of the municipality" notwithstanding its autonomy). It reasoned that allowing the board's attorney to sue the municipality, even on unrelated claims, would leave the losing litigant or the public "troubled by the suspicion that his adversary's success in the matter was attributable to his position or influence as a municipal official."

Applying that principle, the Committee concluded it was improper for the board of health attorney to pursue negligence claims against the municipality, and that he should not represent private litigants before the municipality's other boards, agencies, or governing body, reiterating its Opinion 24. As to the municipal court, the Committee noted the board's attorney could appear there prosecuting health-code violators, so it would be wrong for him to be on opposite sides before the same municipal court judge.

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 line of Committee opinions on attorneys serving public bodies. Conflicts of this kind are now analyzed under RPC 1.7 and, for government lawyers, RPC 1.11; note also that the 2004 revisions abolished the freestanding "appearance of impropriety" standard the older opinions invoked. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific requirement mentioned here.

Common questions

Q: Does the board of health's statutory autonomy let its attorney sue the municipality?

A: No. The Committee held the board remains an agency of the municipality, so its attorney may not pursue claims against the municipality even on unrelated matters.

Q: Can the board of health attorney represent private clients before the municipality's planning board or board of adjustment?

A: No. The Committee reiterated its Opinion 24 that the board's attorney should not represent private litigants before the municipality's other boards, agencies, or governing body.

Q: What was the problem with appearing in the municipal court?

A: Because the board's attorney could appear there prosecuting health-code violators, the Committee said it would be wrong for him to be on opposite sides before the same municipal court judge.

Background and rules framework

The opinion treats a municipal board of health as an agency of the municipality for conflict purposes, extending the reasoning of Opinion 79 on a municipal parking authority. The governing concern, that the public would suspect the attorney's municipal position influenced the outcome, is the "appearance of impropriety" rationale of the Canons era. In current New Jersey terms, concurrent representation against a governmental client is analyzed under RPC 1.7, with RPC 1.11 governing the obligations of present and former government lawyers.

Citations and references

Cases:

• Borden's Condensed Milk Company v. Baker, 168 Fed. 111 (D.N.J. 1909), rev'd on merits 177 Fed. 906 (3d Cir. 1910)
• Grosso v. Paterson, 55 N.J. Super. 164 (Law Div. 1959)

Other opinions cited:

• NJ ACPE Opinion 79, 88 N.J.L.J. 460 (1965): municipal parking authority is an agency of the municipality
• NJ ACPE Opinion 24, 87 N.J.L.J. 19 (1964): board of health attorney may not represent private litigants before the municipality's boards
• NJ ACPE Opinions 18 and 20, 86 N.J.L.J. 734 (1963); Opinion 37, 87 N.J.L.J. 190 (1964)

See also

• NJ ACPE Op. 137: Municipal Attorney Suing the School Board
• NJ ACPE Op. 140: Municipal Prosecutor Defending a Police Officer

Source

• Landing page: https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp141-1.html

Original opinion text

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

91 N.J.L.J. 805
December 12, 1968

OPINION 141

Conflict of Interest - Health Board Attorney Appearance Before Local Agencies - Suing Municipality

The attorney for the board of health inquires whether he may also represent other clients who:

A. Have negligence claims against the same municipality which are totally unrelated to board of health jurisdictional activities such as motor vehicle or pedestrian fall-down cases;

B. Require representation before the board of adjustment or planning board of the same municipality;

C. Are charged with motor vehicle violations and are defendants in the municipal court of the same municipality.

He goes on to say that a municipal board of health, completely unlike a planning board, board of adjustment or other municipal subdivision or administrative body, is, pursuant to statute, a completely individual and autonomous body separate and distinct from that of the governing body of the municipality. He further states that the board of health is not answerable in any way to the governing body, is not subject to its rules or regulations and possesses, uniquely, its own powers to pass ordinances. He cites to support his contention Borden's Condensed Milk Company v. Baker, 168 Fed. 111 (D.N.J. 1909), reversed on merits 177 Fed. 906 (3d Cir. 1910), which he says held that the local board of health is a public agency created under the authority of the State wholly independent of municipal control and further states that in the more recent case of Grosso v. Paterson, 55 N.J. Super. 164 (Law Div. 1959), it was held that the local board of health is an entity distinct from the municipality in which it is established.

It is his feeling that because of the unusual status of the board of health, he should have the right to represent other clients of his who require representation before the other municipal boards and courts, and should also be permitted to represent clients who have negligence claims against the same municipality.

While the specific questions which are the subject matter of this inquiry were not previously before this Committee in exactly the same form, we have had to pass on somewhat similar inquiries as indicated in many of the opinions heretofore filed. See Opinion 37, 87 N.J.L.J. 190 (1964); Opinions 18 and 20, 86 N.J.L.J. 734 (1963), and Opinion 24, 87 N.J.L.J. 19 (1964).

In Opinion 79, 88 N.J.L.J. 460 (1965), we stated that a municipal parking authority was largely autonomous in nature, but, nevertheless, the authority is by statute "an agency and instrumentality of the municipality or county creating it," and, if it is in fact true that the board of health is an autonomous body separate and distinct from that of the governing body of the municipality, we still feel that the board of health is such an agency of the municipality as we indicated in that former opinion.

It seems also to us improper to have an attorney representing the board of health pursue negligence claims against the same municipality even though they may be totally unrelated, such as motor vehicle or pedestrian fall-down cases, because as we stated in Opinion 79, supra, "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." It must be borne in mind that when Opinion 79, supra, was written we indicated that the inquirer there also asked whether he could represent clients before the board of adjustment or planning board. We stated in that opinion that it was not proper for the attorney for the municipal housing authority (also an autonomous body) to represent such clients, and we feel the same way about an attorney representing the board of health.

Answering the inquiry as to whether the attorney for the board of health could represent other clients who are charged with motor vehicle violations and are defendants in the municipal court of the same municipality, it is conceivable that an attorney for a board of health could appear in the municipal court of the same municipality representing the board of health against violators of the local health code. It would definitely be wrong therefore for him to be on opposite sides in cases before the local municipal court judge.

In our Opinion 24, supra, the inquiry was made as to the propriety of an attorney for a local board of health representing private litigants before the board of adjustment, planning board or governing body of the same municipality whose board of health that attorney serves. We stated in that opinion that the board of health attorney should not represent private litigants before the various boards or agencies or before the governing body of the municipality employing that attorney and cited various opinions substantiating our determination. The only additional inquiry made by this applicant relates to negligence claims and motor vehicle violations in the municipal court of the same municipality and we accordingly reiterate our previous determination to the effect that it is improper for this attorney to represent clients who are so involved.