Can a lawyer be attorney for both an elected township board of education and the township itself at the same time?

Plain-English summary

The inquirer was attorney for a township board of education and had been asked to serve as attorney for the township; at the time each municipal body had a separate attorney. The inquirer did not state whether the board of education was appointed or elected, but independent investigation revealed it was elected. Citing Bodkin v. Westwood, 52 N.J. Super. 416 (App. Div. 1958), the Committee noted that in such cases the board of education is entirely independent of the governmental body of the town.

On those facts, the Committee saw no reason why the inquirer could not serve in both capacities, with a caveat: if events occur that give rise to a conflict or an appearance of conflict between the two public entities, counsel cannot represent either of them. It cited Perillo v. Advisory Committee on Professional Ethics, 83 N.J. 366 (1980), and its Opinions 39 and 59.

Currency note

The Justia mirror flags this opinion as reversed and states that Opinion 464 is in effect; this page is indexed as historical research, not current guidance. This opinion was also issued in 1981, 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 rule it applied now corresponds broadly to RPC 1.7. Treat this page as historical context only. Verify against current rules and the bar's current opinion status before relying on anything here.

Common questions

Q: Could the lawyer serve both the elected school board and the township?

A: As this opinion concluded, yes, because an elected board of education is independent of the town government, subject to dropping both clients on any conflict or appearance of conflict. The Justia mirror, however, flags the opinion as reversed.

Q: What was the caveat?

A: If events gave rise to a conflict or appearance of conflict between the two public entities, counsel could represent neither of them.

Q: Did the elected status of the board matter?

A: Yes. The opinion rested on Bodkin v. Westwood, under which an elected board of education is entirely independent of the town's governing body.

Background and rules framework

The opinion applied the conflict and appearance-of-impropriety principles then governing New Jersey lawyers serving multiple public entities. 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. Because the Justia mirror flags the opinion as reversed, its conclusion should not be treated as current.

Citations and references

Rules of Professional Conduct:

• MR 1.7 / NJ RPC 1.7 (concurrent conflicts of interest); decided under the former Disciplinary Rules

Cases:

• Bodkin v. Westwood, 52 N.J. Super. 416 (App. Div. 1958) (elected board of education independent of town government)
• Perillo v. Advisory Committee on Professional Ethics, 83 N.J. 366 (1980)

Other opinions cited:

• NJ ACPE Opinion 39, 87 N.J.L.J. 191 (1964)
• NJ ACPE Opinion 59, 87 N.J.L.J. 741 (1964)
• NJ ACPE Opinion 464 (per the Justia mirror's flag, in effect)

See also

• NJ ACPE Op. 485: County College Trustee Practicing Before County Agencies
• NJ ACPE Op. 707: Board of Education Member as Municipal Attorney
• 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/acp470-1.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.

107 N.J.L.J. 127, February 12, 1981 (Reversed; Opinion 464 In Effect)

OPINION 470

Conflict Of Interest Municipal Attorney Also Board Of Education Attorney

The inquirer is presently attorney for a township board of education and has been asked to serve as attorney for the township. At the present time, each municipal body has a separate attorney. The inquirer does not state whether the board of education is an appointed or elected Board, but independent investigation reveals that it is an elected Board. In Bodkin v. Westwood, 52 N.J. Super. 416, 425 (App. Div. 1958), the court pointed out that in such cases the board of education was entirely independent of the governmental body of the town. Under these circumstances, there is no reason why the inquirer cannot serve in both capacities with a caveat, however, that if events occur which give rise to a conflict or an appearance of conflict between the two public entities, counsel cannot represent either of the two entities. See Perillo v. Advisory Committee on Professional Ethics, 83 N.J. 366 (1980), Opinion 39, 87 N.J.L.J. 191 (1964), and Opinion 59, 87 N.J.L.J. 741 (1964).