Can a municipal attorney foreclose tax sale certificates for private clients in the same municipality he serves?

Plain-English summary

The Committee was asked whether it would be proper for an attorney to foreclose tax sale certificates on behalf of private clients in the municipality which he serves as municipal attorney. It noted that the question had received frequent and consistent treatment in earlier opinions, and that a municipal attorney might be called on to advise the municipality, and particularly the tax collector, in connection with the foreclosure of tax sale certificates, so that simultaneously representing private clients presents an obvious potential conflict.

Quoting at length from its Opinion 4, the Committee explained that an attorney representing a municipality or its agencies has the entire municipality as his client and should avoid retainers that place him in a position where he appears to seek relief or favor from, or to oppose action by, the municipality on behalf of a private client, because success would inevitably leave the losing litigant or the public suspecting that his position as municipal attorney furthered the private client's cause. The Committee concluded that the potential conflict inherent in the situation would make such representation improper.

Currency note

This opinion was issued in February 1970, before New Jersey's September 13, 1971 adoption of the Disciplinary Rules (Code of Professional Responsibility), so the Committee was applying the Canons of Professional Ethics and its own prior opinions. It also predates the 1984 Rules of Professional Conduct and all later revisions. The government-conflict principles it applied are now treated under RPC 1.7 and RPC 1.11. Treat this page as historical context, not current guidance.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: Can a municipal attorney handle private tax-foreclosure work in his own town?

A: No. The Committee held that the potential conflict makes it improper for a municipal attorney to foreclose tax sale certificates for private clients in the municipality he serves.

Q: Why is it a conflict even if the town is not the opposing party?

A: Because the municipal attorney advises the municipality and tax collector on tax-certificate foreclosures, so representing private clients in the same field creates an obvious potential conflict and public suspicion that his office furthered the client's cause.

Background and rules framework

The opinion applied the Committee's foundational rule from Opinion 4, that a municipal attorney's client is the entire municipality, to bar foreclosing private clients' tax sale certificates in the same municipality. In current New Jersey terms the analysis falls under RPC 1.7 and RPC 1.11.

Citations and references

Other opinions cited:

• NJ ACPE Opinion 4, 86 N.J.L.J. 357, 361 (1963); and Opinions 137, 123, 106, 79, 65, 24, 15, 18, 19, 20, 11, 8, and 5

See also

• NJ ACPE Op. 204: County Counsel Representing Private Clients Before Municipal Bodies
• NJ ACPE Op. 217: Municipal Utilities Authority Attorney and Town Agencies
• NJ ACPE Op. 226: Municipal Attorney Whose Wife Is the Tax Collector

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp173-1.html
• Issuing authority: New Jersey Supreme Court Advisory Committee on Professional Ethics, via the NJ Courts Supreme Court Committees page

Original opinion text

Reproduced from a full-text mirror of the official opinion for research purposes. The linked official source controls.

93 N.J.L.J. 125, February 26, 1970

OPINION 173

Conflict of Interest Municipal Attorney - Foreclosing Individual's Tax Sale Certificate

Inquiry has been made as to whether it would be proper for an attorney to foreclose tax sale certificates on behalf of private clients in the municipality which he serves as municipal attorney.

This inquiry raises a question which has received our frequent and consistent treatment in earlier opinions. A number of situations might arise where the municipal attorney would be called on to render advice to the municipality, and particularly the tax collector, in connection with the foreclosure of tax sale certificates. That he might at the same time be representing private clients presents an obvious potential conflict of interests.

The general problem presented by this inquiry was analyzed at length in our Opinion 4, 86 N.J.L.J. 357, 361 (1963) at page 361:

In a broad sense an attorney representing a municipality or any of its agencies has as his "client" the entire municipality, and he should avoid any retainers from others which may place him in a position where he appears to be either seeking relief or favor from the municipality or any of its agencies for a private client or oppose action by the municipality or its agencies on behalf of a private client. If he did so, it would be inevitable that, if he were successful, the losing litigant, or the public in general, would be troubled by suspicion that his success in the matter was attributable to improprieties and that his position or influence as a municipal attorney might have furthered the cause of the private client.

See also Opinions 137, 91 N.J.L.J. 797 (1968); 123, 91 N.J.L.J. 97 (1968); 106, 90 N.J.L.J. 97 (1967); 79, 88 N.J.L.J. 460 (1965); 65, 87 N.J.L.J. 810 (1964); 24, 87 N.J.L.J. 19 (1964); 15, 18, 19, 20, 86 N.J.L.J. 734 (1963); 11, 86 N.J.L.J. 621 (1963); 8, 86 N.J.L.J. 718 (1963); 5, 86 N.J.L.J. 361 (1963).

It is our conclusion that the potential conflict inherent in this situation would make such representation improper.