Can a New Jersey municipal counsel and a county (or county board) counsel of the same county share an office or form a partnership?

Plain-English summary

The Committee was asked about the propriety of an office association or partnership between counsel for a municipality and counsel for a county, or a county board or commission, in the county where that municipality sits. The inquirers suggested the arrangement would be acceptable if one of the lawyers withdrew from matters involving both clients.

The Committee disagreed. It held that such an association, partnership, or office-sharing arrangement is both unwise and improper. Disqualification of one attorney where the subject matter involves both clients does not remove the impropriety when the clients are the public. The Committee surveyed its long line of opinions holding that the same attorney or his partners or associates should not represent two public bodies where there is or may be a conflict, and noting that when a conflict arises and both attorneys must disqualify themselves, that result ill serves the public.

Although the functions of a municipal attorney and a county attorney do not necessarily carry an inherent potential for conflict, the Committee resolved the question by applying the rule that the appearance of impropriety must be avoided. It reasoned that the association of a county attorney and a municipal attorney of the same county could suggest to the public that, in matters between the municipality and county, their attorneys might not bring the same objectivity or vigor as lawyers from different firms. Because withdrawal increases the cost of legal services and deprives a public client of the counsel it first selected, and because a client is entitled to counsel's independent professional judgment exercised objectively (DR 5-106), the Committee concluded the inquirers should not form an office association or partnership.

Currency note

This opinion was issued in 1979, before New Jersey's 1984 replacement of the Disciplinary Rules by the Rules of Professional Conduct and the later revisions to those rules. It rested on the now-abandoned "appearance of impropriety" standard, which New Jersey eliminated from its conflict rules in 2004, and applied DR 5-106. Treat this page as historical context, not current guidance.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 municipal counsel and the county's counsel form a partnership if one withdraws from shared matters?

A: No. The opinion held the arrangement is improper because, when the clients are the public, disqualifying one attorney does not remove the appearance of impropriety.

Q: Did the Committee find an inherent conflict between municipal and county counsel duties?

A: Not necessarily. It noted the two roles do not always carry an inherent potential for conflict, but resolved the question on the appearance-of-impropriety rule.

Q: Why is the withdrawal solution inadequate?

A: The opinion reasoned that withdrawal increases the cost of legal services to the public and deprives the public client of the counsel it first selected.

Background and rules framework

The opinion applied the appearance-of-impropriety doctrine then embodied in Canon 9 of the Code, together with DR 5-106 (a client's entitlement to independent professional judgment). In current New Jersey terms the conflict analysis corresponds to RPC 1.7, though New Jersey removed the freestanding appearance-of-impropriety test in 2004.

Citations and references

Rules of Professional Conduct:

• MR 1.7 / NJ RPC 1.7 (conflicts of interest); appearance of impropriety, former Canon 9 (as applied 1979)
• DR 5-106 (independent professional judgment, as in effect 1979)

Other opinions cited:

• NJ ACPE Opinions 390, 359, 337, 300, 268, 261, 204, 199, 168, 164, 149, 106, 59, 44, 39, 33, and 4 (representation of multiple public bodies; appearance of impropriety)

See also

• NJ ACPE Op. 417: Sharing a Law Library and "Office Associate" Status
• NJ ACPE Op. 460: Regional Sewerage Authority Counsel and Municipal Counsel as Partners
• NJ ACPE Op. 501: Assistant County Counsel as Municipal Prosecutor or Partner of Municipal Counsel

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp415-1.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.

103 N.J.L.J. 38, January 11, 1979

OPINION 415

Office Relationships - Municipal Counsel, County Counsel

We are asked about the propriety of an office association or partnership between counsel for a municipality and counsel for a county, or county board or commission of the county in which that municipality is located. It is suggested that there will be no impropriety if one of the parties withdraws from matters involving both such clients.

Our opinion is that an association, partnership or other office-sharing arrangement between such attorneys is both unwise and improper. Disqualification of one attorney where the subject matter involves both clients will not remove the impropriety where the clients are the public. See our Opinion 390, 101 N.J.L.J. 183 (1978), Opinion 359, 99 N.J.L.J. 1153 (1976).

This Committee has issued many opinions on the ethical concerns affecting the representation of two or more public bodies by the same attorney or by partners or associates of the same firm. We have consistently held that where there is or may be a conflict of interest in a particular situation the same attorney or his associates or partners should not undertake to represent two public bodies. Opinion 337, 99 N.J.L.J. 588 (1976), Opinion 199, 94 N.J.L.J. 225 (1971), and, where the conflict arises, that both attorneys must disqualify themselves, a consequence that ill serves the public. Opinion 300, 98 N.J.L.J. 126 (1975), Opinion 59, 87 N.J.L.J. 741 (1964), and compare Opinion 44, 87 N.J.L.J. 297 (1964). Where we have found the potential for conflict between two public bodies or boards to be inherent in their duties we have held that an attorney or his partners or associates should not undertake to represent both of them. Opinion 164, 92 N.J.L.J. 831 (1969), Opinion 149, 92 N.J.L.J. 185 (1969), and compare Opinion 39, 87 N.J.L.J. 191 (1964).

Attorneys representing public bodies are the legal representatives of the general public; the county attorneys as respects the interests of the public of a county; see Opinion 106, 90 N.J.L.J. 97 (1967), Opinion 168, 93 N.J.L.J. 7 (1970), and municipal counsel as respects the citizens of that municipality Opinion 4, 86 N.J.L.J. 357 (1963). The governing principle applied to inquiries in this area is that counsel for the public must conduct themselves and their practice so as to avoid the appearance of impropriety. Opinion 359, 99 N.J.L.J. 1153 (1976), Opinion 268, 96 N.J.L.J. 1325 (1973), Opinion 204, 94 N.J.L.J. 445 (1971), and see Opinion 390, above.

While in this inquiry it is not clear that the functions of a municipal attorney and of an attorney for the county or of one of its agencies necessarily involve an inherent potential for conflict, we resolve the question by applying the rule that the appearance of impropriety must be avoided. The association or partnership of a county attorney and a municipal attorney of the same county could easily suggest to the public mind that in dealing with matters between municipality and county their respective attorneys may not bring the same objectivity to the problems as would be the case where each practiced law independently. The public may infer that because of their professional relationship these attorneys may be less vigorous in advocating their respective positions than would be the case were they from different law firms. As we noted above, it is no answer to say that where the interests of their respective clients are in conflict each will withdraw, because that not only increases the cost of legal services to the public, but also deprives the public client of representation by the attorney first selected by it. A client is entitled to counsel's independent professional judgment exercised objectively DR 5-106. So, when an attorney's public or professional relationship may raise questions about his ability to function in that manner, the conflicting relationship should be avoided Opinion 390, supra. Compare Opinion 261, 96 N.J.L.J. 1160 (1973), and Opinion 33, 87 N.J.L.J. 249 (1964).

For the foregoing reasons it is our view that these inquirers should not form an office association or partnership.