Can a lawyer serve as counsel to a local board of health while, in pending litigation, he sues the same municipality on behalf of officials seeking indemnification and fees from it?

Plain-English summary

A lawyer asked whether he could represent a local board of health while, in pending litigation, he represented municipal officials sued in their individual capacities, having crossclaimed against the municipality on his clients' behalf for indemnification and legal fees. He noted that in the municipality involved the board of health was an entity distinct from the municipality.

The Committee concluded the attorney may not become legal counsel to the board of health under these circumstances. The fact that the board of health may be a separate entity did not affect the result. In the pending litigation the lawyer was attempting to collect money from the municipality, and ultimately from the taxpayers; if he also represented the board of health, whether through a distinct conduit or not, he would still be receiving legal fees ultimately from the same source, the taxpayers. The Committee found an obvious conflict of interest, drawing on the rationale of its Opinions 19, 20, and 24.

Currency note

This opinion was issued in 1973, 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 Treat this page as historical context, not current guidance.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, deadline, or requirement mentioned here.

Common questions

Q: Does it matter that the board of health is a separate legal entity from the municipality?

A: No. The opinion said the separate-entity status did not affect the result, because the lawyer's fees from both the board and the litigation come ultimately from the same taxpayers.

Q: Why was this a conflict?

A: In the litigation the lawyer was trying to collect money from the municipality (its taxpayers); serving the board of health would mean drawing fees from those same taxpayers while opposing their interests.

Q: What earlier opinions did the Committee rely on?

A: It cited the rationale of its Opinions 19, 20 (86 N.J.L.J. 734 (1963)) and Opinion 24 (87 N.J.L.J. 19 (1964)).

Background and rules framework

The opinion applied the appearance-of-impropriety and divided-loyalty concerns that govern a lawyer who serves a public body while opposing the same public treasury. In current New Jersey terms, the conflict is governed by RPC 1.7.

Citations and references

Rules of Professional Conduct:

• Conflict-of-interest principles as in effect 1973; now MR 1.7 / NJ RPC 1.7

Other opinions cited:

• NJ ACPE Opinions 19 and 20, 86 N.J.L.J. 734 (1963)
• NJ ACPE Opinion 24, 87 N.J.L.J. 19 (1964)

See also

• NJ ACPE Op. 322: A Board of Adjustment Member Suing the Municipality
• NJ ACPE Op. 262: A County School Attorney Representing a Civil Service Council
• NJ ACPE Op. 308: A Freeholder's Attorney Opposing the County Prosecutor

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp255-1.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.

96 N.J.L.J. 649, May 31, 1973

OPINION 255

Conflict of Interest Health Board Attorney Suing Municipalities

An inquiry has been presented as to whether an attorney may represent a local board of health when at the same time in pending litigation he represents municipal officials who are being sued in their individual capacities. Said attorney has crossclaimed against the municipality on behalf of his clients for indemnification and legal fees. The inquirer states that in the municipality involved the board of health is an "entity distinct from the municipality from which it is established."

It is the opinion of this Committee that the attorney may not become legal counsel to the board of health under these circumstances. The fact that the board of health may be a separate entity does not in any way affect the final result. In the pending litigation he is attempting to collect monies from the municipality, which means ultimately the taxpayers. If at the same time he represents the board of health, whether through a distinct and separate conduit or not, he will nevertheless be receiving legal fees ultimately from the same source, the taxpayers. The rationale and philosophy have already been covered in this Committee's Opinions 19 and 20, 86 N.J.L.J. 734 (1963) and Opinion 24, 87 N.J.L.J. 19 (1964). It would appear that in this instance there is an obvious conflict of interest.