May the attorney for a county vocational school board also represent a civil service council that negotiates contracts for employees of the same county?

Plain-English summary

The inquiry asked whether an attorney could represent both the county board of education and a civil service council that handles contract negotiations for various employees, a number of whom are county employees. The attorney was counsel for the county vocational school board of education, whose members are appointed and whose work is financed by the county board of freeholders. None of the school board's own employees belonged to the civil service council.

The Committee drew on its many prior decisions on conflicts arising in public employment, particularly Opinion 106, which held it improper for the county attorney or his associates to represent private clients before various county agencies. It found that what was said of the county attorney applies equally to attorneys for other county boards and agencies, whether or not they are considered autonomous, and that the attorney for the county vocational school board is a member of the official family of the county. Quoting Opinion 106, the Committee said his conduct must be such as to prevent any inference that he is using his public office for private gain. By representing employees in contract negotiations with the county, the Committee concluded, he would be inviting exactly that inference, so the representation would be improper so long as he remained one of the county attorneys.

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 public-office conflict principle it applied is now treated under RPC 1.7 and, for government lawyers, RPC 1.11. Treat this page as historical context, not current guidance.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: Can a county school board attorney represent a council bargaining against the county?

A: Under this opinion, no; the Committee found the representation improper while he remains one of the county attorneys.

Q: Why does the school board attorney count as a county attorney?

A: Because the county vocational school board's members are appointed and financed by the county freeholders, the Committee treated its attorney as part of the county's official family.

Q: What was the specific concern?

A: That representing employees in negotiations with the county would invite the inference, condemned in Opinion 106, that the lawyer was using his public office for private gain.

Background and rules framework

The opinion extended the principle of Opinion 106, that a county attorney may not represent private interests against county agencies, to the attorney for a county-financed school board. In current New Jersey terms, the conflict is governed by RPC 1.7 and RPC 1.11.

Citations and references

Rules of Professional Conduct:

• Public-office conflict principle, as in effect 1973; now MR 1.7 / NJ RPC 1.7 and MR 1.11 / NJ RPC 1.11

Other opinions cited:

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

See also

• NJ ACPE Op. 266: A County Planning Board Member's Private Municipal Practice
• NJ ACPE Op. 272: County Counsel Defending a County Jail Guard
• NJ ACPE Op. 277: A Municipal Legal Assistant's Associate Against the Municipality

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp262-1.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. 1150, September 27, 1973

OPINION 262

Conflict of Interest County School Attorney Representing Civil Service Council

This Committee has received an inquiry as to whether it is ethical for an attorney to represent both the county board of education and a civil service council which handles contract negotiations for various employees, a number of whom are employees of the same county. The attorney is counsel for the county vocational school board of education whose members are appointed and whose work is financed by the county board of freeholders. None of the employees of the school board is a member of the civil service council.

We have dealt with the subject of conflict of interests on many occasions and in particular with those conflicts which arise in the context of public employment. In Opinion 106, 90 N.J.L.J. 97 (1967), we dealt specifically with the county attorney and the conflicts involved in his representation of private clients before various county agencies and we said that it is improper for the county attorney or his associates to represent private clients before such agencies. What was said about the county attorney applies equally to attorneys representing other county boards and agencies whether they be considered autonomous or not. The attorney for the county vocational school board of education is a member of the official family of the county. In the words of Opinion 106, "his conduct must be such as to prevent any inference arising that he is using his public office for private gain." In representing employees in contract negotiations with the county, he is inviting just that inference and, accordingly, such representation would be improper so long as he remains one of the county attorneys.