Can two New Jersey lawyers form a partnership while one serves as mayor and the other as borough attorney in the same municipality?

Plain-English summary

The Committee was asked whether two attorneys could form a partnership while keeping their offices of mayor and borough attorney in the same municipality. The inquirer acknowledged that if the mayor could not himself hold the office of municipal attorney while serving as mayor, then his partner would likewise be precluded. He argued from N.J.S. 40A:9-23, which expressly permits a freeholder to be appointed county counsel, that the comparable municipal statute, N.J.S. 40A:9-155, contained no such prohibition.

The Committee read N.J.S. 40A:9-155 differently. That statute provides that a governing-body member who resigns may be appointed to an office filled by the governing body (with stated salary limits), so long as the office was not created during his term. Because the inquirer and his would-be partner, the mayor, intended to keep their offices and the mayor had not resigned, the Committee concluded the proposed partnership could not be formed if the partners intended to continue as mayor and borough attorney, given the statute's language.

Beyond the statute, the Committee found an ethical conflict. The municipal attorney is appointed by the governing body, which sets his salary; the mayor is part of that appointing process. As a partner, the mayor would share partnership income that includes the fees paid to the municipal attorney. Citing Opinion 192 (attorney could not be borough prosecutor while his office associate was a councilman) and Opinion 22 (public officials must avoid both real and apparent conflicts), the Committee held the arrangement obviously creates a conflict of interest and disapproved it.

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. The conflict principles it applied now correspond broadly to RPC 1.7, and the statutes cited (N.J.S. 40A:9-155, 40A:9-23) may since have been amended. Treat this page as historical context, not current guidance.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 mayor and the borough attorney be law partners?

A: No. The opinion held the partnership cannot be formed if the partners intend to continue as mayor and borough attorney; the statute bars it and the arrangement creates a conflict of interest.

Q: What made it a conflict beyond the statute?

A: The mayor takes part in appointing the municipal attorney and sets his salary, and as a partner would share in partnership income that includes the municipal attorney's fees.

Q: Did the freeholder/county-counsel statute help the inquirer?

A: No. The Committee read the municipal statute (N.J.S. 40A:9-155) to require resignation before appointment, so the analogy to the county-counsel statute did not save the arrangement.

Background and rules framework

The opinion applied N.J.S. 40A:9-155 (appointment of a resigned governing-body member) together with the ethical rule that public officials must avoid both real and apparent conflicts (Opinion 22). In current New Jersey terms, the conflict analysis corresponds to RPC 1.7. The holding combined a statutory bar with an independent ethical conflict arising from the mayor's share of the municipal attorney's fees.

Citations and references

Rules of Professional Conduct:

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

Statutes:

• N.J.S. 40A:9-155 (appointment of resigned governing-body member)
• N.J.S. 40A:9-23 (freeholder may be appointed county counsel)

Other opinions cited:

• NJ ACPE Opinion 192, 94 N.J.L.J. 44 (1971) (prosecutor with councilman office-associate); Opinion 22, 87 N.J.L.J. 13 (1964) (avoid apparent conflicts)

See also

• NJ ACPE Op. 452: Municipal Prosecutor and a Partner on the Planning Board
• NJ ACPE Op. 430: A Municipal Attorney's Partner Serving on the Planning Board

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp436-1.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. 401, November 8, 1979

OPINION 436

Conflict of Interest Law Partnership of Mayor and Borough Attorney

We are asked whether two attorneys can form a law partnership and still retain their offices of mayor and borough attorney in the same municipality. The inquirer acknowledges that if the mayor cannot hold the office of municipal attorney while continuing to serve as mayor, as the mayor's partner he would also be precluded. The inquirer cites several statutes, such as N.J.S. 40A:9-23, which expressly permits a member of the board of chosen freeholders to be appointed to the office of county counsel and he contends that N.J.S. 40A:9-155 is a comparable statute for municipalities and contains no such prohibition. N.J.S. 40A:9-155 provides: A member of the governing body of a municipality who resigns his office as such may be appointed to an office or position required to be filled by the governing body unless the office or position was created by ordinance adopted during the term of office of the member so resigning. In cases of any such appointment the salary of the holder of said office or position shall not be increased during the term of office of the member so resigning. (Emphasis added.)

Since the inquirer and his partner intend to continue their respective offices, and since his would-be partner, the mayor, has not resigned from his office, it is our opinion that the proposed partnership cannot be formed if the partners intend to continue, one as the mayor and the other as the borough attorney, in view of the language of the statute. The municipal attorney is appointed by the municipal governing body which determines his salary. In Opinion 192, 94 N.J.L.J. 44 (1971), we held that an attorney could not be appointed borough prosecutor while his office associate was a councilman in the same borough. In Opinion 22, 87 N.J.L.J. 13 (1964), we quoted from an opinion of our Supreme Court, which should be the guideline for attorneys who become public officials: Similarly, our courts have recently stressed that public officials should avoid not only real conflicts of interest but apparent conflicts of interest as well.

In the proposed arrangement, the mayor is involved in the process of appointing the municipal attorney. As a partner he will share in the partnership income which will include the fees paid to the municipal attorney. It is obvious, therefore, that this arrangement creates a conflict of interest and, accordingly, is disapproved.