Can a municipal attorney who once advised the mayor about his legal fees defend the township when the former mayor later sues it?

Plain-English summary

A municipal attorney asked whether he, or the township's special counsel (employed for matters where the municipal attorney would have a conflict), could defend the township in a suit by the former mayor to recover personal legal expenses he had incurred defending defamation and libel charges arising from incidents that occurred while he was mayor.

On the first question, the Committee noted that the mayor had earlier consulted the municipal attorney, on one or two occasions, asking whether the governing body had authority or any obligation to pay his legal fees. The Committee concluded there could be no doubt that, under those circumstances, the municipal attorney would have a conflict of interest if he had to defend the township in the mayor's suit.

On the second question, the special counsel had formerly served as the township's public defender. Although appointed by the mayor, he was independent of the control of the mayor and governing body, and he never had an attorney-client relationship with the mayor at any time. The Committee held those circumstances do not present a problem of impropriety or actual conflict of interest, citing Opinion 403, which had addressed very similar circumstances.

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 the conflict and former-client provisions of RPC 1.7 and RPC 1.9. Treat this page as historical context, not current guidance.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: Why was the municipal attorney disqualified?

A: Because the mayor had consulted him about whether the town could pay the mayor's legal fees, so defending the township against the mayor's fee suit would put him in a conflict of interest.

Q: Why could the special counsel still represent the township?

A: The special counsel had been the township's public defender, was independent of the mayor's control, and never had an attorney-client relationship with the mayor, so no impropriety or actual conflict arose.

Q: Did the mayor's appointment of the special counsel create a conflict?

A: No. The opinion noted that although the mayor appointed him as public defender, he was independent of the mayor and governing body and never represented the mayor personally.

Background and rules framework

The opinion turned on whether the lawyer had a prior attorney-client relationship with the adverse party (the former mayor). The municipal attorney had advised the mayor and so was conflicted; the special counsel had not and was not. In current New Jersey terms the analysis corresponds to RPC 1.7 (concurrent conflicts) and RPC 1.9 (duties to former clients).

Citations and references

Rules of Professional Conduct:

• MR 1.7 / NJ RPC 1.7 (conflicts of interest)
• MR 1.9 / NJ RPC 1.9 (duties to former clients)

Other opinions cited:

• NJ ACPE Opinion 403, 102 N.J.L.J. 89 (1978) (very similar circumstances regarding special counsel)

See also

• NJ ACPE Op. 415: Office Relationships Between Municipal and County Counsel
• NJ ACPE Op. 423: Prosecuting City Employees at Hearings
• NJ ACPE Op. 504: Former Municipal Workers' Comp Defense Counsel Suing the Municipality

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp412-1.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.

102 N.J.L.J. 489, November 30, 1978

OPINION 412

Conflict of Interest - Municipal Attorney or Special Counsel Defending Municipality Against Former Mayor

A municipal attorney inquires whether he or the township's special counsel, employed to represent the interests of the township in those matters where there would be a conflict of interest if conducted by the municipal attorney, may defend the township in a suit instituted by the former mayor to recover personal legal expenses incurred in defending charges of defamation and libel for incidents which occurred while he was mayor.

We are informed by the inquirer that some time ago the mayor consulted him, on one or two occasions, requesting advice as to whether the governing body had the authority to pay the legal fees or if it had any obligation to do so. There can be no doubt that under these circumstances there would be a conflict of interest if the municipal attorney had to defend the township in the suit by the mayor.

The second question, concerning the representation of the township by special counsel, is complicated only by the fact that the present special counsel was formerly employed by the same former mayor as public defender for the township. Although appointed by the mayor he was independent of the control of the mayor and governing body. We are also informed that he never had any attorney client relationship with the mayor at any time.

These circumstances do not present a problem of impropriety or actual conflict of interest. See Opinion 403, 102 N.J.L.J. 89 (1978), wherein this Committee under very similar circumstances discussed in full the issues raised in this second question.