Can a county counsel represent private clients before municipal courts and bodies, such as on traffic and disorderly-persons charges or in civil municipal matters?

Plain-English summary

The Committee was asked whether a county counsel, the chief legal officer of the board of chosen freeholders, has a conflict in representing private clients in various matters before municipal bodies. It first set the office's scope: county counsel advises the board of freeholders on all matters of interest to it and, unlike the county prosecutor, has no authority to enforce the criminal laws.

Drawing on Opinions 168, 106, and 88 and on the ABA's Opinion 49, the Committee restated its consistent theme that where the public interest is involved, every situation affording a chance for impropriety should be avoided to eliminate public suspicion that a lawyer in public office will use his position for a client. Applying that to the first question, the Committee concluded that county counsel should not appear for private clients before a municipal court on disorderly-persons or traffic matters, since traffic charges (including drugs, drunkenness, and death by auto) and many disorderly-persons offenses are criminal in nature and affect all county residents. As to the civil matters in paragraph 2, the Committee found there is generally no conflict and county counsel should be permitted to represent private clients, because the county counsel has no control over and does not represent the municipalities, which have their own attorneys; it added that this does not rule out a conflict in a particular case.

Currency note

This opinion was issued in May 1971, 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 1.11 and 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 Treat this page as historical context, not current guidance.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: Can a county counsel defend private clients on municipal traffic or disorderly-persons charges?

A: No. The Committee concluded county counsel should not appear for private clients before a municipal court on disorderly-persons or traffic matters, treating them as criminal in nature and affecting all county residents.

Q: Can a county counsel handle private civil matters before municipal bodies?

A: Generally yes. The Committee found no conflict in the listed civil matters, because county counsel does not represent the municipalities, while cautioning that a particular case could still present a conflict.

Q: Why does the office's lack of criminal authority matter?

A: The Committee distinguished county counsel from the county prosecutor, who enforces the criminal laws, and tied the heightened concern to matters criminal in nature affecting all county residents.

Background and rules framework

The opinion applied the Committee's public-office conflict line (Opinions 168, 106, 88) and the appearance-of-impropriety principle (ABA Opinion 49) to a county counsel, distinguishing criminal-type municipal-court matters from ordinary civil municipal matters. In current New Jersey terms the analysis falls under RPC 1.11 and RPC 1.7.

Citations and references

Statutes:

• N.J.S.A. 30:4-23 (definition of "County Counsel")

Other opinions cited:

• NJ ACPE Opinion 168, 93 N.J.L.J. 7 (1970); Opinion 106, 90 N.J.L.J. 97 (1967); Opinion 88, 89 N.J.L.J. 49 (1966)
• ABA Committee on Professional Ethics and Grievances, Opinion 49 (1931)

See also

• NJ ACPE Op. 206: County Counsel Suing the County Commissioner of Registration
• NJ ACPE Op. 202: A Freeholder Subtenant and the County Tax Board
• NJ ACPE Op. 294: Former Attorney of a Public Body Representing Private Clients

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp204-1.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.

94 N.J.L.J. 445, May 27, 1971

OPINION 204

Conflict of Interest County Counsel Representing Private Clients Before Municipal Bodies

In N.J.S.A. 30:4-23 "County Counsel" is defined as follows:

County counsel includes the chief legal officer or adviser of the board of chosen freeholders of any county in this State or his duly authorized representative.

Such officer has no jurisdiction or authority to enforce the criminal laws of the State; that power is vested in the county prosecutor, whose office is separate and apart from the office of county counsel. It is the duty of county counsel to advise the board of freeholders on all matters of interest to it.

In N.J. Advisory Committee on Professional Ethics, Opinion 168, 93 N.J.L.J. 7 (1970), we held that an attorney for the county planning board could not represent persons accused of crime within the county, because he is, in effect, representing all the people of the county, and the public would suspect that the attorney would receive preferential treatment for his client and was using the influence of his public office for private gain.

In Opinion 106, 90 N.J.L.J. 97 (1967), which concerned among other things, the propriety of a county attorney representing private clients accused of crime in his county, we pointed out that the attorney's "conduct must be such as to prevent any inference arising that he is using his public office for private gain" and concluded it would be improper for him to represent such clients. In many opinions we have considered the area of conflict that arises when an attorney for a public body, board or agency, or an attorney member thereof, represents a private client under circumstances creating a suspicion that the attorney is using the influence of his public office in behalf of his client. We have consistently held that such representation was improper. In our Opinion 88, 89 N.J.L.J. 49 (1966), we said:

Running through all our opinions, in this area of conflict, is the prevailing theme that, where the public interest is involved, every situation which affords a chance for impropriety, however slight, should if possible, be avoided in order to eliminate public suspicion that an attorney in public office will use his position or influence in behalf of a client. And this is so whether he is the attorney for or a member of a public body, board or agency. In this respect the language of the A.B.A., Committee on Professional Ethics and Grievances, Opinion 49 (1931), is particularly appropriate. The committee said:

...If the Profession is to occupy that position in public esteem which will enable it to be of the greatest usefulness, it must avoid not only all evil, but must likewise avoid the appearance of evil.

With these ethical principles well established, we come face to face with the questions raised in the present inquiry. Is there a conflict of interest where a county counsel represents private clients in the situations set forth above?

With respect to the first question, we think there is a conflict and that a county counsel should not participate in such cases. Traffic matters involve a wide range of charges, some of minor and some of major importance. Certainly, notations involving drugs, drunkenness, death by auto, and other similar offenses, affect all the residents of the county and bear upon violations of the criminal laws of the State. Many violations of the disorderly persons act are criminal in nature, and result in a penalty upon conviction, even though they may have been downgraded from indictable offenses.

The principles set forth in our cited opinions, as well as the comments set forth herein, fully demonstrate that a county counsel should not be involved in appearances on behalf of private clients before a municipal court on disorderly conduct or traffic matters.

With respect to the matters listed in paragraph 2, we believe there generally is no conflict and that county counsel should be permitted to represent private clients. However, this does not rule out the possibility of a conflict in a particular case. The county counsel has no control over the municipalities within the county and in no way represents any of them. They have their own attorneys to advise and represent them. It cannot be said that the county counsel, in representing all the people of the county in civil matters, represents them with respect to civil matters involving each particular municipally. It is different in criminal matters where persons are accused of indictable offense. The reasons were expressed in Opinion 106, supra.