Does serving on a county's nonpaying advisory board bar a lawyer from criminal defense, appearing before county boards, or suing the county?

Plain-English summary

The inquirer was appointed, by resolution of the board of freeholders, to a one-year term on the advisory board of a county fire fighters and police training academy. The position was nonpaying, nonpolitical, and advisory: the board makes recommendations that are not necessarily binding. He asked whether that appointment would bar him from defending individuals in criminal matters, appearing before any county boards or courts, or maintaining an action against the county.

The Committee found the question had not been decided precisely, but drew on Opinion 28, where a lawyer served on a mayor's unofficial committee, created neither by statute nor ordinance, to attract small industry. There the Committee held the lawyer remained free to accept legal matters involving the town, observing that a lawyer's experience and contacts equip him to serve on public bodies and that the municipality should not be deprived of such gratuitous advice; with no apparent conflict between that unofficial advisory body and legal matters affecting the community, he could accept such matters.

Applying those principles, the Committee held the inquirer is not prohibited from representing clients before the courts in criminal or civil matters, before any county boards, or from maintaining an action against the county. It cited Opinion 102 to the same effect, where a lawyer served on a mayor's unofficial charter-revision study committee and was not prevented from representing private litigants before the city's municipal court, boards, or agencies.

Currency note

This opinion was issued in 1978, before New Jersey's 1984 replacement of the Disciplinary Rules by the Rules of Professional Conduct and the later revisions to those rules. In current New Jersey terms the analysis corresponds to RPC 1.7 and the public-officer provisions of 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 Treat this page as historical context, not current guidance.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: Does serving on a nonpaying county advisory board create a disqualifying conflict?

A: No. The opinion held that membership on a nonpaying, advisory board with no binding authority does not bar the lawyer from criminal defense, appearing before county boards or courts, or suing the county.

Q: What made the advisory role non-disqualifying?

A: The opinion emphasized that the board was nonpaying, nonpolitical, and advisory only, with no binding authority, like the unofficial committees in Opinions 28 and 102.

Q: Can the lawyer maintain an action against the county?

A: Yes. The opinion expressly held the appointment did not prohibit him from maintaining an action against the county.

Background and rules framework

The opinion applied the appearance-of-impropriety and public-officer conflict principles of Opinions 28 and 102 to a lawyer serving on a nonpaying, advisory county board with no binding authority. In current New Jersey terms the analysis corresponds to RPC 1.7 and RPC 1.11.

Citations and references

Rules of Professional Conduct:

• MR 1.7 / NJ RPC 1.7 (conflicts of interest)
• MR 1.11 / NJ RPC 1.11 (special conflicts for government officers and employees)

Other opinions cited:

• NJ ACPE Opinion 28, 87 N.J.L.J. 106 (1964); Opinion 102, 90 N.J.L.J. 1 (1967)

See also

• NJ ACPE Op. 390: Associate Joining a Board His Partner Already Counsels
• NJ ACPE Op. 415: Office Relationships Between Municipal and County Counsel

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp395-1.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.

101 N.J.L.J. 417, May 4, 1978

OPINION 395

Conflict of Interest - County Advisory Board Member in County-Related Practice

The inquirer was appointed for a one-year term as a member of the advisory board of a county fire fighters and police training academy by resolution of the board of freeholders. The position is nonpaying, nonpolitical, advisory in nature, wherein the board makes recommendations which are not of necessity binding.

Would such appointment prohibit the attorney from (1) defending individuals in criminal matters, (2) appearing before any county boards or courts, (3) maintaining an action against the county.

This precise question has not been previously decided. However, in Opinion 28, 87 N.J.L.J. 106 (1964), a mayor formed a committee of business and professional men primarily for the purpose of attracting new small industries to the municipality. Its function would be to explore methods by which this could be done and to advise the mayor accordingly. The committee had no official status or recognition under statute; nor was it created by ordinance. One of the lawyer members of the committee questioned whether he would be free to accept legal matters involving the town. We held that he could do so, and said: A lawyer's experience and broad contacts render him especially equipped to serve on public bodies and to furnish to the public the benefit of his experience, skill and training. A municipality should not be deprived of this gratuitous advice for the public welfare. Under the facts submitted there is no apparent conflict between the world of this unofficial advisory body and the legal matters affecting the community, and therefore the attorney serving on such a committee would be able to accept matters involving the town.

The principles upon which Opinion 28 was decided are applicable to the present case, and the inquirer is not prohibited from representing clients before the courts, in criminal or civil matters, or before any county boards, or from maintaining an action against the county. To the same general effect, see Opinion 102, 90 N.J.L.J. 1 (1967), which involved the appointment by the mayor of an advisory committee to make a charter revision study. He appointed three former mayors, one of whom was a lawyer. The committee had no official status, no specific statutory authority and was not created by ordinance. We held that the attorney would not be prevented from representing private litigants before the city's municipal court, municipal boards or agencies.