Can an assistant county counsel also defend a municipality in the same county in a civil-rights suit that does not involve the county?

Plain-English summary

The inquiry asked whether an attorney could defend a municipality, its mayor, and its council, all located in the county that employed him as assistant county counsel, in an action for denial of civil rights that did not include the county and whose complaint did not refer to the county in any way.

The Committee concluded the situation involved no inherent or potential conflict and saw no objection to the proposed representation. It found there could be no conflict between that representation and the inquirer's existing post as assistant county counsel. The Committee compared Opinion 466, in which it had approved special labor counsel to a county representing private clients in litigation against municipalities in the same county, and referred generally to Perillo and Higgins on the considerations involved.

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 underlying this line of opinions. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance.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 assistant county counsel defend a municipality in the same county?

A: Yes, on these facts. The opinion concluded there was no inherent or potential conflict where the civil-rights action did not include or refer to the county.

Q: What made this representation acceptable when many municipal-county dual roles are barred?

A: The opinion treated this as a specialized representation that did not involve the county, distinguishing it from a municipal attorney's broad duties that are likely to impinge on county interests.

Background and rules framework

The opinion was decided under the conflict principles then governing New Jersey lawyers in government positions, before the 1984 adoption of the Rules of Professional Conduct. In current terms the analysis maps onto RPC 1.7 (concurrent conflicts) and RPC 1.11 (conflicts for current and former government lawyers). A later opinion, Opinion 501, relied on this opinion in allowing an assistant county counsel to serve also as a municipal prosecutor.

Citations and references

Rules of Professional Conduct:

• MR 1.7 / NJ RPC 1.7 (concurrent conflicts of interest)
• MR 1.11 / NJ RPC 1.11 (government lawyer conflicts)

Cases:

• Perillo v. Advisory Committee on Professional Ethics, 83 N.J. 366 (1980)
• Higgins v. Advisory Committee on Professional Ethics, 73 N.J. 123 (1977)

Other opinions cited:

• NJ ACPE Opinion 466, 106 N.J.L.J. 518 (1980) (special labor counsel to a county may represent private clients against same-county municipalities)

See also

• NJ ACPE Op. 501: Assistant County Counsel as Municipal Prosecutor
• NJ ACPE Op. 490: County Tax Board Members Practice Restrictions
• NJ ACPE Op. 499: County Utilities Authority and a Member Municipality

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp489-1.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.

108 N.J.L.J. 525, December 10, 1981

OPINION 489

Conflict of Interest Assistant County Counsel Also Special Counsel to Municipality

This inquiry is whether it is proper for an attorney to undertake the defense of a municipality, its mayor and council located in the county which employs him as assistant county counsel. The action is for a denial of civil rights and does not include the county. Nothing in the complaint in any way refers to that county.

This situation involves no inherent or potential conflict. We see no objection to the inquirer's undertaking the proposed representation. There can be no conflict between that representation and his present post as assistant county counsel. Compare our Opinion 466, 106 N.J.L.J. 518 (1980), where we approved the representation by special labor counsel to a county in litigation for private clients against municipalities in the same county. See generally on the considerations involved Perillo v. Advisory Committee on Professional Ethics, 83 N.J. 366 (1980), Higgins v. Advisory Committee on Professional Ethics, 73 N.J. 123 (1977).