Can the counsel to a municipal parking authority also represent private clients before that municipality's court or its other public agencies?

Plain-English summary

An attorney serving as counsel to a municipal parking authority asked whether he could represent other clients in the municipal court of the same municipality, or before any other governmental agency of the municipality, so long as his appearance would not conflict with his responsibilities to the parking authority. The authority's members were appointed by the mayor and in turn appointed the attorney as their counsel.

The Committee acknowledged that under the statute (N.J.S.A. 40:11A-1 et seq.) a municipal parking authority is largely autonomous, citing Broadway National Bank of Bayonne v. Parking Authority of Bayonne. It observed, however, that the authority is by statute "an agency and instrumentality of the municipality or county creating it" (N.J.S.A. 40:11A-4), and that the statute lets the authority call on the municipality's chief law officer or employ its own counsel (N.J.S.A. 40:11A-5).

In these circumstances, the Committee concluded that an attorney employed as counsel to a municipal parking authority cannot properly represent private clients before the municipal court or before any other public agency of that municipality. It noted it had repeatedly explained the underlying considerations in prior opinions.

Currency note

This opinion was issued in September 1964, before New Jersey's September 13, 1971 adoption of the Disciplinary Rules (Code of Professional Responsibility), and well before the 1984 Rules of Professional Conduct and all later revisions. It applied Canon 6 of the former Canons of Professional Ethics; conflicts for lawyers holding public positions are now addressed by RPC 1.7 and RPC 1.11. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.

Common questions

Q: Did the parking authority's autonomy let its counsel take private clients in the municipality?

A: No. Although the Committee agreed the authority is largely autonomous, it relied on the statute defining the authority as an agency and instrumentality of the municipality, and held that its counsel cannot represent private clients before the municipal court or other municipal agencies.

Q: Could the attorney appear before other public agencies of the same municipality?

A: No. The Committee extended the bar to any other public agency of that municipality, not just the municipal court.

Background and rules framework

The opinion applied Canon 6 of the former Canons of Professional Ethics through the Committee's prior municipal-conflict opinions, reading the parking authority's statutory status as an agency and instrumentality of the municipality. Conflicts of this kind are now analyzed under RPC 1.7 and, for public officers, RPC 1.11.

Citations and references

Rules of Professional Conduct (as in effect at the time):

• Canon of Professional Ethics 6 (adverse influences and conflicting interests)

Statutes:

• N.J.S.A. 40:11A-1 et seq. (parking authority law); 40:11A-4 (authority as agency and instrumentality of the municipality); 40:11A-5 (legal services for the authority)

Cases:

• Broadway National Bank of Bayonne v. Parking Authority of Bayonne, 40 N.J. 227 (1963), autonomy of a municipal parking authority

Other opinions cited:

• N.J. ACPE Opinions 4, 8, 18, 19, 20, 24, and 29: municipal-attorney conflicts under Canon 6

See also

• NJ ACPE Op. 64: Municipal Parking Authority Member
• NJ ACPE Op. 67: Municipal Attorney Before Other Agencies
• NJ ACPE Op. 53: Municipal Prosecutor Appealing for His Own Client

Source

• Landing page: https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp52-1.html

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

87 N.J.L.J. 610
September 24, 1964

OPINION 52

Conflict of Interest
Attorney to Municipal Parking Authority

An attorney serving as counsel to a municipal parking authority inquires whether he may properly represent other clients in the municipal court of the same municipality or before any other governmental agency of the municipality as long as his appearance would not conflict with his responsibilities to the parking authority. The members of the authority are appointed by the mayor and they in turn appointed the attorneys as their counsel.

While we are aware that under the statute (N.J.S.A 40:11A-1 et seq.) a municipal parking authority is largely autonomous in nature (see Broadway National Bank of Bayonne v. Parking Authority of Bayonne, 40 N.J. 227 (1963)); nevertheless, the authority is by statute "an agency and instrumentality of the municipality or county creating it" (N.J.S.A 40:11A-4). The statute provides that the authority may call upon the chief law officer of the municipality for legal services or may employ its own counsel (N.J.S.A. 40:11A-5).

In these circumstances, we believe an attorney employed as counsel to a municipal parking authority cannot properly represent private clients before the municipal court or before any other public agency of that municipality. We have repeatedly indicated the underlying considerations supporting the governing principle in prior opinions. Opinion 4, 86 N.J.L.J. 357 (1963); Opinion 8, 86 N.J.L.J. 718 (1963); Opinion 18, 86 N.J.L.J. 734 (1963); Opinion 19, 86 N.J.L.J. 734 (1963); Opinion 20, 86 N.J.L.J. 734 (1963); Opinion 24, 87 N.J.L.J. 19 (1964); and Opinion 29, 87 N.J.L.J. 106 (1964).