If a New Jersey lawyer is barred from a county legal post because of an actual conflict, can the lawyer's partner take that post instead, and what if the conflict arises from the lawyer's seat on a county board?

Plain-English summary

The Committee opened by repeating an observation it had first made in Opinion 189: a high percentage of its inquiries arise out of relationships between lawyers and governmental agencies in which a lawyer or an office associate holds a position, and a reference to the standard against an appearance of wrongdoing would resolve most of them. The opinion noted that the Committee had by then published well over 500 opinions and the proportion had not appreciably declined. Two such questions were presented.

On the first question, the inquirer recognized that a municipal court judge is expressly prohibited by the Municipal Court Judge's Manual from becoming an assistant county counsel in the relevant county on grounds of actual conflict of interest. The question was whether the judge's partner could become assistant county counsel in that county. The Committee held the relationship clearly inappropriate: where an actual conflict is perceived to exist, limitations on the practice of law by the judge extend to his associates, and particularly to his partners, citing R. 1:15-4, R. 1:15-5(b), DR 5-105(D), and prior opinions.

On the second question, a lawyer was a member of a County Community College Commission, and his partner sought appointment as assistant county counsel. The Committee held the appointment inappropriate. It reasoned that a County Community College Commission is not autonomous in the way a Type II elected Board of Education is autonomous (Opinion 376), because the Board of Chosen Freeholders, to whom the assistant county counsel renders legal advice, has a significant role in both appointing Commission members (N.J.S.A. 18A:64A-32) and funding the Commission's activities (N.J.S.A. 18A:64A-36). The inherent conflict was therefore apparent.

Currency note

This opinion was issued in 1983, 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 the Committee invoked in this line of cases. 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 Treat this page as historical context, not current guidance.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: A municipal court judge cannot be assistant county counsel in the same county; could the judge's law partner take that post?

A: No. The opinion held that where an actual conflict bars the judge, the limitation extends to the judge's associates and particularly his partners, so the partner's appointment was inappropriate.

Q: Did the disqualification of one lawyer reach the lawyer's whole firm?

A: Yes, on these facts. The opinion applied the principle that an actual conflict perceived as to one lawyer extends to that lawyer's office associates and partners, citing R. 1:15-4, R. 1:15-5(b), and DR 5-105(D).

Q: Why was a county community college commission treated differently from an elected board of education?

A: The opinion reasoned the Commission was not autonomous like a Type II elected Board of Education, because the Board of Chosen Freeholders both appoints and funds the Commission, creating an apparent inherent conflict for an assistant county counsel whose partner sits on the Commission.

Background and rules framework

The opinion was decided under the conflict and imputation principles then governing New Jersey lawyers in government-related 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 1.10 (imputation of one lawyer's disqualification to the firm), and the result rested on the New Jersey court rules then governing judges and their associates (R. 1:15-4, R. 1:15-5(b)) together with DR 5-105(D).

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)

Court rules and statutes cited:

• R. 1:15-4 and R. 1:15-5(b) (limitations on practice by judges and their associates)
• DR 5-105(D) (imputed disqualification under the former Code)
• N.J.S.A. 18A:64A-32 (appointment of county community college commission members)
• N.J.S.A. 18A:64A-36 (county funding of the commission)

Other opinions cited:

• NJ ACPE Opinion 189, 93 N.J.L.J. 789 (1970) (volume of government-conflict inquiries; appearance-of-wrongdoing standard)
• NJ ACPE Opinion 376, 100 N.J.L.J. 698 (1977) (autonomy of an elected board of education)
• NJ ACPE Opinions 106, 192, 390, and 436 (county attorneys and agencies)

See also

• NJ ACPE Op. 547: Sewerage Authority Counsel Whose Partner Sues the Authority

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp516-1.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.

111 N.J.L.J. 481, May 12, 1983

OPINION 516

Conflict of Interest Municipal Court Judge, Member of County Community College Commission Partners of Assistant County Counsel

In Opinion 189, 93 N.J.L.J. 789 (1970) we noted the high percentage of inquiries to this Committee that arose out of relationships between lawyers and governmental agencies in which a lawyer or his office associates occupied positions. We suggested that a reference to a standard relating to the avoidance of an appearance of wrongdoing might resolve most of these inquiries. We have now published well over 500 opinions and the percentages of inquiries relating to the aforesaid subject matter has not appreciably declined. This inquiry involves two such questions.

In the first question the inquirer recognizes that a municipal court judge is expressly prohibited by terms of the Municipal Court Judge's Manual from becoming an assistant county counsel in the relevant county on grounds of actual conflict of interest. The question, however, is whether it is proper for the judge's partner to become assistant county counsel in such county. In cases where an actual conflict is perceived to exist, limitations on the practice of law by the judge extend to his associates and particularly to his partners. See R. 1:15-4, R. l:15-5(b), DR 5-105(D) and numerous prior opinions of this Committee. The suggested relationship would, therefore, clearly be inappropriate.

In the second question an attorney is a member of a County Community College Commission of the county, wherein his partner seeks to be appointed assistant county counsel. We are asked to consider the propriety of that appointment. A County Community College Commission is not, we think, a Board which is autonomous in the sense that a Type II elected Board of Education is autonomous. Opinion 376, 100 N.J.L.J. 698 (1977). The Board of Chosen Freeholders of the county to whom the assistant county counsel renders legal advice and assistance has a significant role to play in both the appointment of members of the County Community College Commission, N.J.S.A. 18A:64A-32, and the funding of its activities, N.J.S.A. 18A:64A-36. The inherent conflict is, therefore, apparent, rendering the proposed appointment inappropriate. See Opinions 106, 90 N.J.L.J. 497 (1967), 192, 94 N.J.L.J. 44 (1971), 390, 101 N.J.L.J. 183 (1978) and 436, 104 N.J.L.J. 401 (1979) relating to the applicability of the principles governing municipal attorneys and agencies to questions involving county attorneys and agencies.