Is a municipal attorney automatically conflicted out if his spouse becomes the town's tax collector?

Plain-English summary

The Committee was asked whether a municipal attorney would be placed in a conflict of interest if his wife were elected tax collector of the same municipality, or appointed by the governing body to fill such a vacancy for an unexpired term.

The Committee concluded that while a situation might arise where there would be a conflict, there is no conflict per se. Quoting its Opinion 174, it observed that the attorney for a municipality represents the whole municipality, and in doing so also represents the individual officials of the municipality in the performance of their official duties. It added that the same rule would apply whether the collector was elected or appointed.

Currency note

This opinion was issued in 1972, before New Jersey's adoption of the 2004 revisions to the Rules of Professional Conduct, and predates the 1984 replacement of the Disciplinary Rules by the RPCs. The conflict principle it applied is now treated under 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 Treat this page as historical context, not current guidance.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: Is the municipal attorney automatically disqualified?

A: No. The Committee found no conflict per se, reasoning that the municipal attorney already represents the municipality and its officials in their official duties.

Q: Does it matter whether the spouse is elected or appointed?

A: No. The Committee said the same rule applies whether the collector was elected or appointed.

Q: Could a conflict ever arise?

A: Yes. The Committee acknowledged a situation might arise where there would be a conflict, even though none exists per se.

Background and rules framework

The opinion applied the conflict-of-interest principle, as expressed in its Opinion 174 on a municipal attorney's representation of the municipality and its officials, to a spousal relationship with a town official. In current New Jersey terms the analysis falls under RPC 1.7.

Citations and references

Rules of Professional Conduct:

• Conflict-of-interest principles as in effect 1972; now MR 1.7 / NJ RPC 1.7

Other opinions cited:

• NJ ACPE Opinion 174, 93 N.J.L.J. 132 (1970): a municipal attorney represents the whole municipality and its officials in their official duties

See also

• NJ ACPE Op. 237: A Defense Lawyer Married to an Assistant Prosecutor
• NJ ACPE Op. 328: A Husband Municipal Attorney and a Wife on the School Board

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp226-1.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.

95 N.J.L.J. 54, January 20, 1972

OPINION 226

Conflict of Interest Municipal Attorneys Wife as Tax Collector

An inquiry has been made containing the following questions.

Would a municipal attorney be placed in a conflict of interest:

A. If his wife were elected tax collector of the same municipality; or

B. If his wife were appointed by the governing body to fill such a vacancy for the unexpired term?

This Committee feels that while a situation might arise where there would be a conflict, there is no conflict per se. It stated in N.J. Advisory Committee on Professional Ethics, Opinion 174, 93 N.J.L.J. 132 (1970):

The attorney for the municipality represents the whole municipality. In so doing, he also represents individual officials of the municipality in the performance of their official duties.

The same rule would apply whether the collector was elected or appointed.