Can a lawyer who serves as a trustee on a municipal library board also act as the paid attorney for that same board?

Plain-English summary

An attorney who was a member of an appointive municipal library board asked whether he could serve as both a trustee or board member and as attorney to the same library board in matters where a fee is charged. The Committee observed that local library boards were then engaged in building programs, including referenda and large-scale public construction, so a lawyer-trustee's services would likely go well beyond the casual, gratis advice such a board might otherwise receive.

The Committee reasoned that, as board attorney, the member is in a lawyer-client relationship with his board, raising questions of his retainer, fees, the extent of his services, whether independent counsel should be engaged, and whether his services are satisfactory, including the board's right to terminate the relationship. The member who undertakes to represent his own board "becomes an adviser to himself," and if he disqualified himself on matters affecting his professional relationship, he would deprive the board of its statutory numerical strength. The Committee found an inherent danger and seeming impropriety comparable to the dual representation proscribed by Canon 6, and noted that because the library board is a public body, consent cannot justify the arrangement.

The Committee added that a lawyer should be able to advise and act for his client without thought of his individual interest, which here includes his interest as a public official and trustee of public funds. It pointed to R.S. 40:54-14, directing that library trustees take no compensation for their services, and reasoned that an affirmative answer would accomplish by indirection what the statute prohibits. It concluded that a library board trustee who is an attorney should not perform professional services for the board on which he sits, whether or not a fee is charged.

Currency note

This opinion was issued in April 1964, before New Jersey's September 13, 1971 adoption of the Disciplinary Rules (Code of Professional Responsibility), and well before the 1984 Rules of Professional Conduct and all later revisions. It applied Canons 6, 8, and 32 of the former Canons of Professional Ethics; the conflict principle is now found in RPC 1.7. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or statute mentioned here.

Common questions

Q: Could the lawyer-trustee serve as the library board's attorney if no fee was charged?

A: No. The Committee concluded he should not perform professional services for the board on which he sits whether or not a fee is charged.

Q: Why was this treated as a conflict?

A: Because representing his own board makes the member an adviser to himself, an inherent conflict comparable to the dual representation Canon 6 forbids, and a public body cannot consent to cure it.

Q: How did the no-compensation statute factor in?

A: The Committee read R.S. 40:54-14, barring compensation to library trustees, as a legislative policy that an affirmative answer would evade by indirection.

Background and rules framework

The opinion applied Canons 6, 8, and 32 of the former Canons of Professional Ethics, treating a lawyer-trustee's representation of his own board as an inherent conflict that a public body cannot consent to, reinforced by the trustee-no-compensation statute R.S. 40:54-14. The conflict analysis is now found in RPC 1.7.

Citations and references

Rules of Professional Conduct (as in effect at the time):

• Canon of Professional Ethics 6 (adverse influences and conflicting interests)
• Canons of Professional Ethics 8 and 32 (also cited)

Statutes:

• R.S. 40:54-14 (library trustees shall not take compensation for their services)

Other opinions cited:

• N.J. ACPE Opinion 4, 86 N.J.L.J. 357 (1963); Opinion 29, 87 N.J.L.J. 106 (1964): consent unavailable where the public interest is involved
• Drinker, Legal Ethics 109-110, 120 (1953)

See also

• NJ ACPE Op. 64: Municipal Parking Authority Member
• NJ ACPE Op. 217: Municipal Utilities Authority Attorney Conflicts
• NJ ACPE Op. 37: Board-of-Health Member's Private Practice

Source

• Landing page: https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp33-1.html

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

87 N.J.L.J. 249
April 23, 1964

OPINION 33

Conflict of Interest
Board Member-Attorney

An attorney who is a member of an appointive municipal library board inquires as to the propriety of serving as both a trustee or board member, and as attorney to the same library board in matters where a fee is to be charged that board.

Local public library boards, in many areas of this State, are presently engaged in building programs. Their activities include referenda on the public questions presented for voter actions and large scale public construction. Hence, the professional services of a lawyer-trustee advising such a board are likely to be more than the casual advice customarily furnished gratis in this type of situation. In the role of board attorney, such a member is put into a lawyer-client relationship with his board. On this basis, he and his board become concerned with such matters as: his retainer, his fees, and the extent of legal services to be performed for the board; whether or not independent counsel should be engaged for a specific matter; and whether or not his services are satisfactory. Implicit here is the right to terminate the relationship as the board may decide. In his role as board member he is concerned with the board's response to his professional advice. The consequence is that the member who undertakes to represent his own board becomes an adviser to himself. If he disqualifies himself on matters affecting his professional relationship, he deprives the board of the statutory numerical strength provided for it.

It would seem that many times his personal interest in the performance of his public duties as a library trustee must necessarily conflict with his professional interests and duties as attorney to the board. There is an inherent danger and seeming impropriety in this situation comparable to dual representation proscribed by Canons of Professional Ethics, Canon 6. The fact that the library board is a public body precludes consent as justification. See Opinion 4, 86 N.J.L.J. 357 (1963), and Opinion 29, 87 N.J.L.J. 106 (1964), of this Committee; Drinker, Legal Ethics 120 (1953).

An attorney should avoid conflicting interests and situations which prevent him from giving candid, objective opinions unaffected by his own personal interests. Canons 6, 8 and 32.

A lawyer should be able to advise and act for his client without any thought as to his individual interest. Drinker, Legal Ethics 109-110 (1953).

As used above the term "individual interest" includes the interest of a public official serving as a member of a library board. As trustee of public funds, a board member ought not to be put in a position where his public office may be used to provide his professional means. R.S. 40:54-14 directs that library trustees shall not take compensation for their services. An affirmative answer to this inquiry would accomplish by indirection what the statute prohibits.

Since the employment of itself offends the ethical considerations involved and is contrary to the legislative policy exhibited in R.S. 40:54-14, it is the opinion of this Committee that a library board trustee who is an attorney should not perform professional services for the board on which he sits, whether or not a fee is charged.