Can two lawyers who are both part-time assistant municipal attorneys for the same town represent opposing spouses in a divorce?

Plain-English summary

The inquirer was a part-time assistant municipal attorney who also maintained a private practice in a partnership. A woman asked him to represent her in a divorce; she had first gone to another lawyer who was also a part-time assistant municipal attorney in the same municipality and who maintained a separate private practice, but that lawyer had previously represented her husband and had since been engaged to represent the husband in the divorce, so he referred her to the inquirer. The inquirer asked whether two lawyers who are both part-time assistant municipal attorneys for the same municipality may represent the opposing parties in a divorce action.

The Committee concluded that the association of opposing attorneys as part-time employees of the same public employer does not create a sufficient appearance of impropriety or conflict to prohibit such representation under the facts presented.

Currency note

This opinion was issued in 1980, 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, including the 2004 abolition of the freestanding "appearance of impropriety" standard. The conflict principles it applied now correspond broadly to RPC 1.7. Treat this page as historical context, not current guidance.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 two part-time municipal attorneys represent opposing spouses?

A: Yes. The opinion concluded their shared part-time public employment did not create a sufficient appearance of impropriety or conflict to bar the representation on these facts.

Q: Why didn't the shared public job create a conflict?

A: The opinion treated the lawyers' association as part-time employees of the same municipality as insufficient, by itself, to taint their unrelated private representation of opposing divorce clients.

Background and rules framework

The opinion applied the conflict and appearance-of-impropriety principles then governing New Jersey lawyers who share a public employer. In current New Jersey terms the analysis maps onto RPC 1.7 (concurrent conflicts of interest), though the freestanding appearance-of-impropriety standard was abolished in 2004. The Committee's focus was on whether the shared part-time municipal role, not any shared client confidence, tainted the private divorce representation.

Citations and references

Rules of Professional Conduct:

• MR 1.7 / NJ RPC 1.7 (concurrent conflicts of interest); decided under the former appearance-of-impropriety standard

See also

• NJ ACPE Op. 469: Employment by Two Law Firms and a State Agency
• NJ ACPE Op. 489: Assistant County Counsel as Special Counsel to a Municipality
• NJ ACPE Op. 478: An Assistant County Counsel's Associate on a County Criminal Appeal

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp458-1.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.

106 N.J.L.J. 141, August 14, 1980

OPINION 458

Part-time Assistant Municipal Attorneys - Representing Opposing Spouses

The factual situation presented to this Committee for its advisory opinion is as follows. The inquirer is a part-time assistant municipal attorney who also maintains a private law practice in the form of a partnership. Recently, a woman asked him to represent her in a divorce action. She had originally sought legal representation in this matter from another attorney who is also a part-time assistant municipal attorney in the same municipality which employs the inquirer and also maintains a separate private law practice. She was advised by the other attorney that he had represented her husband in the past and, therefore, would be unable to represent her in the divorce action and, in fact, he had been engaged by the husband to represent him in the divorce action. Apparently, he then referred the woman to the inquirer. The inquirer's question may be stated as follows: May attorneys who are both part-time assistant municipal attorneys for the same municipality represent the opposing parties in a divorce action?

It is our considered opinion that the association of opposing attorneys as part-time employees of the same public employer does not create sufficient appearance of impropriety or conflict to prohibit such representation under the facts presented by this inquiry.