Can a lawyer who is a county college trustee appear before the boards and agencies of the same county for private clients?

Plain-English summary

The Committee was asked whether an attorney who is a trustee of a county college, appointed by the board of freeholders, could appear before the various boards and agencies of the same county without offending the Disciplinary Rules. The county had adopted a code intended to bar county officials, appointees, and employees from deriving benefit from appearances before county agencies, but counsel for the college and the county counsel both concluded the trustees were not governed by that resolution because a county college is an independent political subdivision.

The issue the Committee framed was whether the presence of an attorney who is an appointed county official before a county agency creates an appearance of impropriety. It noted that the New Jersey Supreme Court had held a county college to be an autonomous, separate political subdivision (Atlantic Community College v. Civil Service Commission, 59 N.J. 102 (1971)). The Committee contrasted its Opinion 77, which barred a Chapter 6 board-of-education member from appearing before that municipality's bodies because the municipality exercised fiscal control over the board, and Opinion 37, which similarly restricted a local board-of-health member.

Applying the appearance-of-impropriety test, the Committee asked whether a reasonable, knowledgeable member of the public would perceive divided allegiance or special influence, requiring a reasonable basis and not a mere possibility (citing Perillo and In re Opinion 415). Because county college trustees are not under the kind of fiscal control municipalities exert over Chapter 6 school districts, and the college draws most of its support from sources other than the county, the Committee found no basis for proscribing the attorney's appearances before county agencies.

Currency note

This opinion was 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. The 2004 revisions abolished the freestanding "appearance of impropriety" standard on which this opinion turned. Treat this page as historical context, not current guidance.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 a county college trustee appear before county agencies for private clients?

A: Yes. The opinion concluded there was no basis to bar the appearances because a county college is an autonomous political subdivision not under county fiscal control.

Q: Why did this differ from a board-of-education member's restriction?

A: The opinion distinguished Opinion 77, where a Chapter 6 board-of-education member was barred because the municipality exercised fiscal control over the board; county colleges are not under comparable county control.

Q: What test did the Committee apply?

A: It asked whether a reasonable, knowledgeable member of the public would perceive divided allegiance or special influence, requiring a reasonable basis rather than a mere possibility.

Background and rules framework

The opinion was decided under the appearance-of-impropriety standard then governing New Jersey lawyers in public positions (Canon 9 / former DR practice), measured against the public-perception test the Supreme Court had articulated in Perillo v. Advisory Committee on Professional Ethics and In re Opinion 415. In current terms the analysis maps onto RPC 1.7 (concurrent conflicts), though the freestanding appearance-of-impropriety standard the opinion applied was abolished in 2004. The controlling fact was the absence of county fiscal control over an autonomous county college.

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

Cases:

• Atlantic Community College v. Civil Service Commission, 59 N.J. 102 (1971) (county college is an autonomous political subdivision)
• Bd. of Trustees, Mercer County College v. Sypek, 160 N.J. Super. 452 (App. Div. 1978), certif. denied, 78 N.J. 327 (1978)
• Perillo v. Advisory Committee on Professional Ethics, 83 N.J. 366 (1980) (public-perception test)
• In re Opinion 415, 81 N.J. 318 (1979)

Other opinions cited:

• NJ ACPE Opinion 37, 87 N.J.L.J. 190 (1964) (local board-of-health member restricted)
• NJ ACPE Opinion 77, 88 N.J.L.J. 453 (1965) (Chapter 6 board-of-education member barred)
• NJ ACPE Opinion 466, 106 N.J.L.J. 518 (1980)

See also

• NJ ACPE Op. 489: Assistant County Counsel as Special Counsel to a Municipality
• NJ ACPE Op. 501: Assistant County Counsel as Municipal Prosecutor
• NJ ACPE Op. 516: Judge-Partner and College-Commission-Member Partner Conflicts

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp485-1.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. 574, June 18, 1981

OPINION 485

Conflict of Interest County College Trustee Practicing Before County Agencies

We are asked whether an attorney who is a trustee of a county college by appointment of board of freeholders may appear before the various boards and agencies of the same county without offending the Disciplinary Rules.

The appointment to the county college was made under N.J.S. 18A:64A-8. That board of freeholders has adopted a Code of "Standards of Conduct of Officials and Employees of X County". The intent of that code is to prohibit any county official, appointee or employee from deriving any benefit from appearances before any of the county agencies. Counsel for the college has rendered his opinion that trustees of that county college are not governed by the Freeholders' resolution. To this conclusion the county counsel has agreed. The reason given for this conclusion is that a county college is an independent political subdivision of the county not subject to treatment as a county agency.

At issue is the question whether the presence of an attorney who is an appointed county official before a county agency creates an appearance of impropriety.

Our Supreme Court has held that a county college is an autonomous separate political subdivision of a county. Atlantic Community College v. Civil Service Commission, 59 N.J. 102 (1971), accord Bd. of Trustees Mercer County College v. Sypek, 160 N.J. Super. 452 (App. Div. 1978) certif. denied, 78 N.J. 327 (1978).

In our Opinion 77, 88 N.J.L.J. 453 (1965), we held that an attorney member of a Chapter 6 board of education was precluded from representing individual clients before the court and boards of that municipality. We pointed out that the Chapter 6 board member was appointed by the mayor, that the mayor of such a municipality sat on the board of school estimate with two governing body members, so that the municipality exercised some control over the board of education. In Opinion 37, 87 N.J.L.J. 190 (1964), we previously held that an appointed member of the local board of health should not appear before the court and agencies of that municipality on behalf of private clients.

While county college trustees are appointed by county officials, they are not under the kind of fiscal control exerted by municipalities in Chapter 6 [Title I] school districts. The county college derives most of its support from sources other than the county, Atlantic Community College v. Civil Service Commission, supra.

In applying the ethical consideration of an "appearance of impropriety" to the facts in this inquiry the question to be met is whether or not a reasonable knowledgeable member of the public (See Perillo v. A.C.P.E., 83 N.J. 366, (1980) will perceive that this attorney's representation of a private client before county agencies will involve a divided allegiance or a diminished professional commitment on his part; further that his position as a college trustee in some way gives him special influence before such bodies. There must be a reasonable basis, not a mere possibility of that "appearance of impropriety" in order to preclude such representation. (See In re Opinion 415, 81 N.J. 318 (1979) and our Opinion 466, 106 N.J.L.J. 518 (1980).

Given the independent role of a county college, we find no basis for proscribing this attorney's appearance before county agencies.