Can the attorney for an elected board of education represent private clients before the town's other boards or in matters against the town itself?

Plain-English summary

The question was whether an attorney for a board of education elected under Chapter 7 (Title 18 of the Revised Statutes) could represent individual clients before the various boards of the municipality and represent clients against the municipality in which the school district is located.

The Committee found no conflict on those facts. A board of education elected by the people under Chapter 7 is clearly autonomous and is not a part of the municipality in which it is located; it is a separate body and a distinct entity from the municipal government, and neither may interfere with the other, citing Botkin v. Westwood.

The Committee distinguished the situation that does create a conflict: where an attorney represents an agency or board appointed by a municipality and then appears before another municipal board or agency for a private client, or represents clients against the municipality itself. That conflict, it noted, had already been determined under Canon 6 in its Opinions 4, 5, 18, 19, 20, and 24.

Currency note

This opinion was issued in May 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 Canon 6 of the former Canons of Professional Ethics, turning on whether the school board was distinct from the municipality; such conflicts 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 Treat this page as historical context, not current guidance.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 or requirement mentioned here.

Common questions

Q: Could the elected board's attorney take private clients against the municipality?

A: Yes. The Committee found no conflict because an elected Chapter 7 board of education is autonomous and distinct from the municipal government.

Q: When would a similar arrangement create a conflict?

A: When the attorney represents a board or agency appointed by the municipality and then appears before another municipal body for a private client, or against the municipality. The Committee said that conflict had already been determined under Canon 6.

Background and rules framework

The opinion applied Canon 6 of the former Canons of Professional Ethics, distinguishing an autonomous elected board of education from boards appointed by the municipality. Relying on Botkin v. Westwood, it treated the elected board as a separate entity. Concurrent conflicts of this kind are now analyzed under 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)

Cases:

• Botkin v. Westwood, 52 N.J. Super. 416 (App. Div. 1958), autonomy of an elected board of education

Other opinions cited:

• N.J. ACPE Opinions 4, 5, 18, 19, 20, and 24: conflicts where a municipally appointed board's attorney appears against the municipality

See also

• NJ ACPE Op. 44: Councilman and School-Board Attorney
• NJ ACPE Op. 59: Municipal and School-Board Attorney Partners
• NJ ACPE Op. 137: Municipal Attorney Suing a School Board

Source

• Landing page: https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp41-1.html

Original opinion text

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

87 N.J.L.J. 285
May 7, 1964

OPINION 41

Conflict of Interests
School Board Attorney

The question raised involves the propriety of an attorney for a board of education elected under Chapter 7 (Title 18 of the Revised Statutes) in representing individual clients before the various boards of the municipality and in representing clients against the municipality in which the school district is located. Under the facts stated there appears to be no conflict. A board of education elected by the people under Chapter 7 is clearly autonomous and is not a part of the municipality in which it is located. It is a separate body and is a distinct entity from the municipal government. Neither has any right to interfere with the other. See Botkin v. Westwood, 52 N.J. Super 416 (App. Div. 1958).

The conflict which is apparent when an attorney represents an agency or board appointed by a municipality and appears before another board or agency of the municipality on behalf of a private client or represents clients against the municipality itself has already been determined. See Canons of Professional Ethics, Canon 6 and this Committee's Opinions 4, 86 N.J.L.J. 367 (1963); 5, 86 N.J.L.J. 361 (1963); 18, 19 and 20 at 86 N.J.L.J. 734 (1963); and 24, 87 N.J.L.J. 19 (1964).