Can a lawyer continue a private client's appeal from a municipal court conviction while he is also retained by that same township to defend it in civil litigation?

Plain-English summary

The inquiring attorney had represented a client charged with driving while under the influence before a township municipal court. After taking that retainer, the attorney was engaged by the same township to defend it in four separate suits brought by former municipal officials seeking reimbursement of personal legal fees. The client was found guilty of driving while impaired, and the attorney took an appeal; he asked whether his representation of the township in litigation against it prevented him from participating in that appeal.

The Committee pointed to its Opinion 123, where an attorney engaged by a municipality solely to foreclose tax-sale certificates had asked whether he could appear before any municipal body on behalf of private clients, and the Committee had held he was precluded from doing so while representing the municipality. The Committee saw no reason for a different result because the matter was now on appeal to the county court from the municipal court, and it concluded that it would be improper for the inquiring attorney to appear on behalf of the private client in this litigation.

Currency note

This opinion was issued in 1976, 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. Conflict questions of this kind for lawyers who also represent a public body are now analyzed 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 Treat this page as historical context, not current guidance.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: Can a lawyer who represents a township also handle a private client's case touching that township?

A: Under this opinion, no. Following Opinion 123, the Committee held the attorney was precluded from appearing for the private client while representing the municipality.

Q: Did taking the case up on appeal to the county court change the analysis?

A: No. The Committee found no reason for a different result because the matter had moved to the county court on appeal.

Background and rules framework

The opinion applied the rule of its Opinion 123, that a lawyer representing a municipality may not appear for private clients in matters touching it, to a conviction appeal. In current New Jersey terms, the conflict question is governed by RPC 1.7.

Citations and references

Rules of Professional Conduct:

• Conflict principles for lawyers also representing a public body, as in effect 1976; now analyzed under MR 1.7 / NJ RPC 1.7

Other opinions cited:

• NJ ACPE Opinion 123, 91 N.J.L.J. 97 (1968)

See also

• NJ ACPE Op. 351: Municipal Attorney Representing a Police Officer at a Probable-Cause Hearing
• NJ ACPE Op. 370: A Municipal Solicitor Defending Local Offenders
• NJ ACPE Op. 353: Whether a Public Body Can Waive Its Attorney's Conflict

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp349-1.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.

99 N.J.L.J. 715, August 12, 1976

OPINION 349

Conflict of Interest
Appealing Client's Municipal Court Conviction Defending Municipality in Civil Action

The inquiring attorney represented a client, charged with driving while under the influence of alcohol, before a township municipal court. Subsequent to that retainer the attorney was engaged by the same township to defend it in four separate suits brought by former municipal officials seeking reimbursement for personal legal fees. The defendant was found guilty of driving while impaired, and the attorney has taken an appeal. Is he prevented from participating in the appeal because he also represents the township in litigation against it?

In our Opinion 123, 91 N.J.L.J. 97 (1968), an attorney was engaged by a municipality solely to foreclose tax sale certificates. He inquired whether he could appear before any municipal body on behalf of private clients. We held that he was precluded from doing so while representing the municipality.

We do not perceive that the result should be any different because the matter is now on appeal to the county court from the municipal court. We therefore conclude that it would be improper for the inquiring attorney to appear on behalf of the private client in this litigation.