May a lawyer serve at the same time as assistant county counsel and as mayor of a municipality within that county?

Plain-English summary

The Committee was asked whether it was proper for an assistant county counsel to serve simultaneously as the mayor of a municipality in the same county. It concluded the question was answered squarely by In re Opinion No. 415, 81 N.J. 318 (1979), in which the New Jersey Supreme Court held that an attorney, his partner, or associate may not be counsel to a municipality and to the county in which it is located. The Court had outlined numerous areas in which the interests of a county and a municipality may conflict, observing that a municipal attorney has a duty to further the municipality's public interest while county counsel is bound to advance the county's, and that these interests may frequently be antagonistic.

The Committee reasoned that if a county counsel cannot also serve as attorney for a municipality in the same county because the duties of the two offices may engender a conflict, then he must likewise be precluded from serving as mayor of the municipality, since the mayor has no less, and perhaps even more, of an obligation than the municipal attorney to further the municipality's interests against those of the county. Accordingly, the Committee held that an attorney cannot properly hold the position of assistant county counsel and mayor of a municipality of that county at the same time, but should choose between them.

Currency note

This opinion was issued in 1984, before New Jersey's adoption of the 2004 revisions to the Rules of Professional Conduct. The concurrent-conflict analysis it applies now lives in RPC 1.7. 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 Treat this page as historical context, not current guidance.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 a lawyer be both assistant county counsel and mayor of a town in that county?

A: No. The opinion concluded the two positions could not be held at the same time and that the lawyer had to choose between them.

Q: What authority controlled the result?

A: Per the opinion, In re Opinion No. 415, 81 N.J. 318 (1979), in which the Supreme Court held a lawyer may not be counsel to both a county and a municipality within it.

Q: Why did being mayor, rather than municipal attorney, make a difference?

A: It did not change the result. The opinion reasoned that a mayor has at least as great an obligation as the municipal attorney to further the municipality's interests against the county's, so the same conflict applied.

Citations and references

Rules of Professional Conduct:

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

Cases:

• In re Opinion No. 415, 81 N.J. 318 (1979) (an attorney may not be counsel to both a county and a municipality within it)

See also

• NJ ACPE Op. 560: County Counsel Representing a Municipal Housing Authority in the Same County
• NJ ACPE Op. 568: County Attorney as Prosecutor and Township Solicitor as Welfare-Board Counsel
• NJ ACPE Op. 572: Planning-Board Member in Litigation Against the Constituent Municipality
• 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/acp530-1.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.

113 N.J.L.J. 400, April 12, 1984

OPINION 530

Conflict of Interest - Assistant County Counsel Serving as Mayor of Municipality within County

This inquiry is whether it is proper for an assistant county counsel to serve simultaneously as the mayor of a municipality in the same county. We think the question is answered squarely by In re Opinion No. 415, 81 N.J. 318, 327 (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." After outlining numerous areas in which the respective interests of a county and a municipality may conflict, the Court said:

A municipal attorney has a duty to further that municipality's public interest, whereas county counsel is bound to advance the public interest of the county. As we have observed, these interests may frequently be antagonistic. Id., at 326.

If a county counsel cannot also serve as attorney for a municipality in the same county because the respective duties of the two offices may engender a conflict of interests, it follows that he must be precluded from serving as mayor of the municipality for the same reason. The mayor has no less and perhaps even more of an obligation than that of the municipal attorney to further the interests of his municipality vis-a-vis those of the county. Accordingly, we hold that this inquiry is controlled by the rationale of In re Opinion No. 415, supra, and that an attorney cannot properly hold the position of Assistant County Counsel and mayor of a municipality of that county at the same time but should choose between them.