Can a New Jersey city attorney sue a former member of the governing body, on the city's behalf, to recover money received under color of office?

Plain-English summary

The Committee was asked whether a city attorney may bring suit on behalf of his municipality against a former member of the governing body to recover monies allegedly received under color of office, in a civil suit grounded in a claim of extortion for personal benefit. The attorney had received his appointment during the former member's term of office.

Relying on Opinion 187, the Committee restated that a municipal attorney represents the entire municipality. On the facts presented, it saw no impropriety in the proposed representation of the city against a former city official to recover money allegedly due the municipality. It added that the fact the attorney was advising the governing body while the former member was sitting had no bearing on that conclusion.

The Committee distinguished Opinion 187, where the mayor and council were in conflict in the exercise of their respective functions and the city attorney was held obligated to step aside. Here there was no such intramural conflict; the city's interest in recovery was singular, and the former member was no longer part of the client municipality's governing body.

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 and entity-representation principles it applied now correspond broadly to RPC 1.7 and RPC 1.13. Treat this page as historical context, not current guidance.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: Could the city attorney sue a former council member for the city?

A: Yes. The opinion found no impropriety in suing a former governing-body member, on the municipality's behalf, to recover money allegedly received under color of office.

Q: Did it matter that the attorney was appointed during the member's term?

A: No. The opinion stated that the attorney's having advised the governing body while the former member was sitting had no bearing on the conclusion.

Q: Whom does a municipal attorney represent?

A: The entire municipality, per Opinion 187. Because the client is the municipality and the defendant is a former official, the representation was proper.

Background and rules framework

The opinion applied the principle that a municipal attorney's client is the entire municipality (Opinion 187), and distinguished the situation, also from Opinion 187, where an internal conflict between the mayor and council requires the attorney to step aside. In current New Jersey terms, the conflict rule corresponds to RPC 1.7 and the rule that a lawyer for an organization represents the entity to RPC 1.13. The holding was that suing a former official to recover the municipality's money presents no conflict.

Citations and references

Rules of Professional Conduct:

• MR 1.7 / NJ RPC 1.7 (conflict of interest; current clients)
• MR 1.13 / NJ RPC 1.13 (organization as client)

Other opinions cited:

• NJ ACPE Opinion 187, 93 N.J.L.J. 649 (1970) (municipal attorney represents the entire municipality; must step aside on internal conflict)
• NJ ACPE Opinion 174, 93 N.J.L.J. 132 (1970)

See also

• NJ ACPE Op. 452: Municipal Prosecutor and a Partner on the Planning Board
• 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/acp441-1.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. 531, December 20, 1979

OPINION 441

Conflict of Interest City Attorney Representing City vs. Former Governing Body Member

We are asked whether a city attorney may bring suit on behalf of his municipality against a former member of the governing body to recover monies allegedly received under color of office. The attorney received his appointment during the term of office of the former member. The proposed civil suit involves a claim of extortion for personal benefit.

We have held that a municipal attorney represents the entire municipality, Opinion 187, 93 N.J.L.J. 649 (1970). On the facts presented we see no impropriety in the proposed representation of the city against a former city official for recovery of monies allegedly due the municipality. The fact that the attorney was advising the governing body when the former member was sitting has no bearing upon this conclusion. Cf. Opinion 187 above where the mayor and council were in conflict in the exercise of their respective functions and we held that the city attorney should step aside. See Opinion 174, 93 N.J.L.J. 132 (1970).