May one attorney represent both a local K-8 school district and the overlapping regional high school district?

Plain-English summary

An attorney asked whether he could represent both the primary school district (kindergarten through eighth grade) in municipality "A" and the secondary (regional) school district covering both municipality "A" and municipality "B." He described the legal relationship between the two districts as limited, with occasional issues touching both, and proposed retaining special counsel for any specific issue where a conflict arose.

The Committee concluded that it would clearly be a breach of professional ethics to represent both boards. Quoting Opinion 300, 98 N.J.L.J. 126 (1975), it reasoned that the public is ill-served when, upon a conflict, an attorney for two agencies must terminate his services as to both clients, and that where the potential for conflict is reasonably clear, multiple representation should be refused, a principle that applies with particular force to public boards because the public cannot give consent after full disclosure. The Committee added that conflict of interest may cloud the attorney's judgment so he cannot be objective or fully advocate either client's position, and, citing Opinion 415, 103 N.J.L.J. 38 (1979), that the appearance of impropriety must be avoided not only where an existing conflict appears but also where a conflict might potentially arise. It further concluded that neither the attorney's associate nor his partner could represent one school board while he represented the other, because the same inherent potential conflict existed.

Currency note

The Justia mirror flags this opinion as "Reversed." A later New Jersey Supreme Court review or subsequent opinion may have changed the result described here; the mirror does not give the reversal citation. This opinion was also issued in 1984, before New Jersey's 2004 revisions to the Rules of Professional Conduct, which abolished the freestanding "appearance of impropriety" standard the Committee relied on. Treat this page as historical context, not current guidance. Verify against current rules and the opinion's later disposition before relying on anything stated here.

Common questions

Q: Could one attorney represent both a local and a regional school district that overlap?

A: As issued, the opinion said no: it concluded such dual representation would breach professional ethics because the potential for conflict was reasonably clear. The mirror notes the opinion was later reversed.

Q: Did proposing to bring in special counsel for conflict issues cure the problem?

A: As issued, no. The opinion held that where the potential for conflict is reasonably clear, multiple representation of public boards should be refused, not managed by substitute counsel.

Q: Could the attorney's partner or associate take one of the boards instead?

A: As issued, no. The opinion concluded the same inherent potential conflict barred the attorney's partner or associate from representing one board while he represented the other.

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)

Other opinions cited:

• NJ ACPE Opinion 300 (multiple representation of public boards should be refused where the potential for conflict is reasonably clear)
• NJ ACPE Opinion 415 (the appearance of impropriety must be avoided)

See also

• NJ ACPE Op. 547: Sewerage Authority Counsel Whose Partner Sues the Authority
• NJ ACPE Op. 552: Municipal Counsel Representing the Municipality and Its Officials
• NJ ACPE Op. 560: County Counsel Representing a Municipal Housing Authority
• NJ ACPE Op. 588: Multiple Representation of Public Entities in an Environmental Suit

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp545-1.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.

114 N.J.L.J. 495, November 8, 1984, Reversed

OPINION 545

Conflict of Interest - Attorney Representing Different School Districts

An attorney has inquired whether he may represent both the primary school district (grades kindergarten through eighth) in municipality "A" and the secondary school district (grades ninth through twelfth) which covers both municipality "A" and municipality "B". He states that the legal relationship between the primary school district and the regional high school is quite limited, but on occasion issues do arise that may involve both districts. In the event of such a conflict, the attorney suggests that a special counsel could be retained for those specific issues.

It would clearly be a breach of professional ethics for the attorney to represent both the municipal school board and the regional school board. We note our Opinion 300, 98 N.J.L.J. 126 (1975) wherein we stated, "[t]he public is ill-served when upon the event of a conflict an attorney for two agencies has to terminate his services as to both clients. Where the potential for conflict is reasonably clear, multiple representation should be refused." In the same opinion, we earlier stated that, "[t]his principle applies with particular force in cases of multiple representation of public boards or agencies for the reason that the public cannot give consent after full disclosure." The avoidance of a conflict of interest must take place not only where there is an existing conflict of interest, but where there might be a potential conflict of interest. The appearance of impropriety must be avoided as stated in Opinion 415, 103 N.J.L.J. 38 (1979).

Conflict of interest may cloud the judgment of an attorney so that he may not be able to be objective, nor be able to advocate the position of either or both of his clients to his full ability. The interests of either or both clients as well as the public will not be served. It should also be noted that neither the attorney's associate, nor the attorney's partner, may represent one school board when the attorney represents the second. The same inherent potential conflict of interest exists in that situation.