Can an assistant county counsel have a partner who serves as a municipality's counsel in the same county, and can the assistant county counsel also be a municipal prosecutor there?

Plain-English summary

The inquiry posed two questions: whether an attorney could hold the part-time position of assistant county counsel while a partner served as counsel to a municipality in the same county; and whether an attorney could be assistant county counsel while also serving as municipal prosecutor of a town in the same county.

On the first question, the Committee answered no, relying on the Supreme Court's decision in In re Opinion 415, 81 N.J. 318 (1979), which held that an attorney, his partner, or his associate may not be counsel to both a municipality and the county in which it is located. That prohibition extended to a partnership between an assistant county counsel and a municipal attorney in the same county. The Committee rejected the inquirer's suggestion that Perillo v. Advisory Committee on Professional Ethics and Opinion 489 required clarification, treating Opinion 415 as dispositive.

On the second question, the Committee reached a different result. A municipal attorney acts as general counsel across the municipality's day-to-day affairs, while a municipal prosecutor's role is ordinarily limited to prosecuting disorderly-persons offenses and motor-vehicle violations in municipal court. Because that circumscribed function would not normally collide with the county's legal interests, the Committee held it would not preclude a partnership or office association between a municipal prosecutor and an assistant county counsel. Drawing on Opinion 489, which had allowed an assistant county counsel to represent a municipality in a civil-rights suit not involving the county, the Committee distinguished broad municipal-counsel duties from a narrow, specialized service unlikely to involve the county. It held that, subject always to occasional disqualification in the unusual case (citing Perillo), a municipal prosecutor may also serve as assistant counsel to the county in which the municipality is located.

Currency note

This opinion was issued in 1982, 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 Justia mirror of this opinion does not carry an N.J.L.J. dateline, so only the year is recorded here; it sits in sequence between Opinions 500 (110 N.J.L.J. 325, Sept. 16, 1982) and 502 (110 N.J.L.J. 349, Sept. 23, 1982). The 2004 revisions abolished the freestanding "appearance of impropriety" standard underlying this municipal-conflict line. 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 an assistant county counsel's law partner serve as a municipality's counsel in the same county?

A: No. The opinion held that In re Opinion 415 barred an attorney, partner, or associate from being counsel to both a municipality and its county, and the assistant county counsel's partner could not be the municipal attorney.

Q: Could the assistant county counsel also be a municipal prosecutor in the same county?

A: Yes. The opinion concluded the prosecutor's narrow role (disorderly-persons offenses and motor-vehicle violations) would not normally conflict with the county's interests, so the dual service was permissible, subject to disqualification in the unusual case.

Q: Why treat a municipal prosecutor differently from a municipal attorney?

A: The opinion reasoned a municipal attorney's wide-ranging duties are likely to impinge on county interests, while a municipal prosecutor performs a specialized function unlikely to involve the county at all.

Background and rules framework

The opinion was decided under the conflict and imputation principles then governing New Jersey lawyers in government positions, before the 1984 adoption of the Rules of Professional Conduct, and rested on the Supreme Court's Opinion 415 decision. In current terms the analysis maps onto RPC 1.7 (concurrent conflicts) and RPC 1.10 (imputation among partners), with the public-office considerations now addressed through RPC 1.7's personal-interest analysis.

Citations and references

Rules of Professional Conduct:

• MR 1.7 / NJ RPC 1.7 (concurrent conflicts of interest)
• MR 1.10 / NJ RPC 1.10 (imputation of conflicts within a firm)

Cases:

• In re Opinion 415, 81 N.J. 318 (1979) (an attorney, partner, or associate may not be counsel to both a municipality and its county)
• Perillo v. Advisory Committee on Professional Ethics, 83 N.J. 366 (1980) (occasional disqualification in the unusual case)

Other opinions cited:

• NJ ACPE Opinion 366, 100 N.J.L.J. 290 (1977) (limited role of the municipal prosecutor)
• NJ ACPE Opinion 489, 108 N.J.L.J. 525 (1981) (assistant county counsel may perform a specialized service for a municipality not involving the county)

See also

• NJ ACPE Op. 516: Partner of a Judge or County-Board Member as Assistant County Counsel

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp501-1.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.

OPINION 501

Assistant County Counsel as Municipal Prosecutor Assistant County Counsel Partner of Municipal Counsel

This inquiry poses two questions.

1. Whether it is proper for an attorney to hold the part-time position of assistant county counsel while his partner serves as counsel to a municipality within the same county; and 2. Whether it is proper for an attorney to hold the position of assistant county counsel while also serving as municipal prosecutor of a town within the same county.

The first question is answered by In Re Opinion 415, 81 N.J. 318 (1979), in which the Supreme Court held that "[a]n attorney, his partner or associate may not be counsel to a municipality and to the county in which it is located." This prohibition, of course, would extend to a partnership or association between an assistant county counsel and the attorney for a municipality situated in the same county. The inquirer recognizes as much, but suggests that the issue requires "clarification" in light of the Court's subsequent decision in Perillo v. Advisory Committee on Professional Ethics, 83 N.J. 366 (1980) and our Opinion 489, 108 N.J.L.J. 525 (1981). We disagree and refer the inquirer to In Re Opinion 415, supra, as being dispositive of her question.

The second part of the inquiry, i.e., whether an assistant county counsel may also serve as municipal prosecutor of a municipality in the same county, presents somewhat different considerations. A municipal attorney acts as general counsel to the municipality in the day-to-day conduct of its governmental and business affairs. By contrast, the municipal prosecutor does not deal with the broad spectrum of legal matters which led the Court in Opinion 415 to prohibit association between municipal attorneys and county counsel because "[t]here are too many situations in which the interests of counties and their municipalities may conflict." 81 N.J., at 325. The role of the municipal prosecutor ordinarily is limited to the prosecution of individuals charged with disorderly persons offenses and motor vehicle violations in municipal court. See Opinion 366, 100 N.J.L.J. 290 (1977). So circumscribed a function, in our view, normally would not collide with the legal interests of the county and thus would not preclude partnership or office association between a municipal prosecutor and an assistant county counsel.

In Opinion 489, supra, we recently held that an assistant county counsel could properly represent a municipality within the county in a civil rights suit against it which did not include the county. Far from contravening Opinion 415, as the inquirer suggests, our holding in Opinion 489 was predicated upon a recognition of the difference between a municipal attorney whose wide-ranging duties sooner or later are likely to impinge upon the legal interests of the county, and an attorney engaged by the municipality to perform a specialized legal service which is unlikely to involve the county at all. We think a municipal prosecutor is in the latter category and, subject always to the rule of occasional disqualification in the unusual case (see Perillo v. Advisory Committee on Professional Ethics, supra), we hold that a municipal prosecutor may also serve as an assistant counsel to the county in which the municipality is located.