Can a county counsel represent a private client in a suit against the county's commissioner of registration challenging one of the commissioner's rulings?

Plain-English summary

The Committee was asked whether it is proper for a county counsel to represent a private party in litigation against the commissioner of registration for the same county, attacking a ruling of the commissioner. Drawing on its Opinion 106 (about the county prosecutor), the Committee noted that although the commissioner of registration is appointed by the Governor, he is paid by the county board of freeholders, so both officials are representatives of the general public of the county and members of the same "official county family."

Strictly speaking, the Committee acknowledged, county counsel is not the attorney for the commissioner of registration. But it concluded that in the eyes of the public county counsel is the attorney for the official county family of which the commissioner is a part, so the proposed representation creates a strong appearance of violating Canon 6 and particularly the lawyer's duty to represent his client with undivided fidelity. Reiterating that maintaining confidence in the bar requires avoiding even the appearance of wrongdoing, the Committee concluded it would be improper for county counsel to represent a private party in litigation attempting to overturn a ruling of the commissioner of registration of that county.

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 and undivided-fidelity 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 Treat this page as historical context, not current guidance.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 county counsel sue another county official on behalf of a private client?

A: Not where it challenges that official's ruling. The Committee held county counsel may not represent a private party suing the commissioner of registration to overturn the commissioner's ruling.

Q: Does it matter that county counsel is not formally the commissioner's lawyer?

A: No. The Committee accepted that county counsel is not strictly the commissioner's attorney, but found that the public sees county counsel as the lawyer for the official county family of which the commissioner is a part.

Background and rules framework

The opinion applied Canon 6 of the Canons of Professional Ethics and the appearance-of-impropriety principle, treating the commissioner of registration and county counsel as members of the same "official county family." In current New Jersey terms the analysis falls under RPC 1.7 and RPC 1.11.

Citations and references

Rules of Professional Conduct:

• Canon 6, Canons of Professional Ethics (undivided fidelity), as in effect 1971; now MR 1.7 / 1.11 and NJ RPC 1.7 / 1.11

Other opinions cited:

• NJ ACPE Opinion 106, 90 N.J.L.J. 97 (1967)

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. 322: Board-of-Adjustment Member Suing the Municipality

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp206-1.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. 451, May 27, 1971

OPINION 206

Conflict of Interest County Counsel Private Suit Against Commissioner of Registration

Inquiry has been made as to whether it is proper for a county counsel to represent a private party in litigation brought against the commissioner of registration for the same county attacking a ruling of the commissioner.

As noted in our Opinion 106, 90 N.J.L.J. 97 (1967), relating to the county prosecutor, while the commissioner of registration is appointed by the Governor he is paid by the county board of freeholders. Therefore, both officials are representatives of the general public of the county and members of the same "official county family."

Strictly speaking, the county counsel is not the attorney for the commissioner of registration. We think, however, that in the eyes of the public he is the attorney for the official county family of which the commissioner is a part. There is thus created by this proposed representation a strong appearance of the violation of Canon 6 and particularly of the lawyer's duty to represent his client with undivided fidelity.

We have frequently expressed our opinion that to maintain confidence in the bar it is necessary not only to avoid actual wrongdoing, but even the appearance of wrongdoing. Obviously, the people in the county involved could reasonably conclude that it is wrong for the attorney for the county to represent a private party in a suit against an official of that county attacking a decision of that official presumptively made in the interest of the same general public represented by county counsel.

We conclude, therefore, that it would be improper for a county counsel to represent a private party in litigation attempting to overturn a ruling of the commissioner of registration of that county.