If a New Jersey lawyer defends municipalities and police through a liability insurer, can the lawyer also represent private clients before that town's boards and municipal court?

Plain-English summary

The inquirer did legal work for a liability insurer whose insureds included various municipalities, defending the municipalities, their agents, and police for negligence, false arrest, and civil-rights claims. He was not the solicitor for any of the municipalities, and agreed he could not represent private clients in municipal court where the complaining witness or investigating officer was or had been his client. He asked two questions: whether he could represent other clients in unrelated matters before a municipality's planning board, board of adjustment, or other bodies; and whether he could represent clients in the municipal court in unrelated matters where neither the complaining witness nor the investigating officer had been his client.

The Committee held both proposed representations proper. Drawing on Opinion 320 (an attorney known as a PBA attorney is not precluded from representing PBA members in civil matters) and Opinion 404 (representation barred in municipal court where a complaining police witness was previously represented by the attorney), it concluded that, because the inquirer is not the municipal attorney, attorney for any governmental body, or the PBA attorney, Opinions 377 and 113 would not bar his appearance before the municipality's boards. The inquirer is not truly a municipal attorney in the sense of a member of the official family appointed by the governing body; he is counsel chosen by the insurer for a particular matter, so there is little likelihood the public would associate him with the municipal government and find an appearance of conflict.

The Committee set limits. It is improper to represent a private client in municipal court where the attorney previously represented the complaining witness or investigating officer, and matters before a planning board, board of adjustment, or governing body must be clearly unrelated to the subject of prior insurer representation. It further cautioned that if the inquirer represents a member of an official municipal board, or if municipal-body members must be involved as witnesses in a matter he is handling for the insurer, any appearance before that body while the litigation is pending would be improper; and if any prior insurer representation of a board would give the public an appearance of conflict, the later representation before that board should be declined.

Currency note

This opinion was issued in 1979, 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. It applied the conflict and appearance-of-conflict principles then governing; in current New Jersey terms the conflict analysis corresponds to RPC 1.7, and the appearance-of-impropriety standard has since been removed from New Jersey's rules. 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 insurer-chosen defense counsel for a town appear before that town's boards for private clients?

A: Yes, in clearly unrelated matters. The opinion found him not a municipal attorney, so the public is unlikely to associate him with the municipal government.

Q: Can he appear in the town's municipal court?

A: Yes, where neither the complaining witness nor the investigating officer was his client; representation is barred where he previously represented either.

Q: What additional limits did the opinion impose?

A: He must decline appearing before a body while pending insurer litigation involves that body's members as witnesses, and decline any later representation that would give the public an appearance of conflict.

Background and rules framework

The opinion applied the appearance-of-conflict principle, turning on whether the lawyer is identified with the municipal government, and distinguished insurer-selected defense counsel from the appointed municipal attorney. In current New Jersey terms the conflict analysis corresponds to RPC 1.7. The holding permitted unrelated practice before the municipality's bodies and court, subject to the prior-representation and pending-litigation limits.

Citations and references

Rules of Professional Conduct:

• MR 1.7 / NJ RPC 1.7 (conflict of interest; current clients)

Other opinions cited:

• NJ ACPE Opinion 320, 98 N.J.L.J. 857 (1975), as modified 100 N.J.L.J. 1126 (1977); Opinion 404, 102 N.J.L.J. 205 (1978); Opinion 377, 100 N.J.L.J. 698 (1977); Opinion 113, 90 N.J.L.J. 473 (1967)

See also

• NJ ACPE Op. 423: A Municipal Prosecutor Prosecuting City Employees
• NJ ACPE Op. 437: A Charter Study Commissioner Appearing Against a Variance

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp428-1.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.

104 N.J.L.J. 1, July 5, 1979

OPINION 428

Conflict of Interest Attorney for Insurance Company Which Defends Municipalities - Municipal Practice

Inquirer does legal work for a liability insurance company which numbers among its insureds various municipalities. He is called upon by the company from time to time to defend municipalities, their agents and servants, for negligence, false arrests, civil rights violations, etc. Each of the cases involves as defendants either the municipal entity, its police officers, or both.

Inquirer is not the solicitor for the municipalities involved or any other governmental body connected with the municipalities. He understands and agrees that he could not represent private clients in matters before a municipal court in which the complaining witness or investigating officer is or has been represented by inquirer.

There are two questions: (a) May an attorney representing municipalities and their employees through an insurance company represent other clients in unrelated matters before a planning board, board of adjustment or other governmental bodies of that municipality? (b) May an attorney representing individual police officers through an insurance company represent individual clients in the municipal court of the municipality in unrelated matters where neither the complaining witness nor the investigating officer has been represented by him?

In our opinion the proposed representations in unrelated matters are proper in both situations presented. In Opinion 320, 98 N.J.L.J. 857 (1975), as modified by Supplement to Opinion 320, 100 N.J.L.J. 1126 (1977), we held that an attorney who is known as a PBA attorney is not precluded from representing PBA members in civil matters. Opinion 404, 102 N.J.L.J. 205 (1978), prohibits representation in a municipal court when a complaining police witness has been previously represented by the attorney.

Since the inquirer is not a municipal attorney or attorney for any other governmental body in the municipality or the attorney for the PBA, we do not consider that Opinion 377, 100 N.J.L.J. 698 (1977), or Opinion 113, 90 N.J.L.J. 473 (1967), would preclude appearance before various boards in the municipality. The inquirer is not truly a municipal attorney in the sense of being a member of the official family appointed to his position by the governing body. Instead he is the attorney chosen by the insurance company for the purpose of representing the municipal body in a particular matter. Thus it appears that there is little likelihood that the general public would associate him with the municipal government so as to give any appearance of a conflict of interest.

We reiterate our prior opinion that it would be improper to represent a private client in a municipal court where the attorney had previously represented the complaining witness or investigating officer and that any matters presented to a planning board, board of adjustment or other governmental body, including the governing body, must be clearly unrelated to the subject matter of prior representation for the insurance company. We further caution that if the inquirer represents a member of any official board of the municipality or if it is clear that members of a municipal body must be involved with him as witnesses or otherwise in the course of his handling a matter for the insurance company, any appearance before such municipal body while the litigation is pending would be improper. In addition, if any prior representation of a municipal board through an insurance company would give or tend to give to the public any appearance of a conflict of interest, the subsequent representation of a client before the particular board should be declined.