Can county counsel also represent a municipal housing authority located within that same county?

Plain-English summary

The Committee was asked whether county counsel may continue to represent a local Municipal Housing Authority in the same county. The authority had been created by the municipality under N.J.S.A. 55:14A-1 et seq.

The Committee relied on the Supreme Court's holding in In re Opinion No. 415, 81 N.J. 318 (1979), that an attorney, his partner, or associate may not be counsel to a municipality and to the county in which it is located, and on its own Opinion 530, 113 N.J.L.J. 400 (1984), which barred an Assistant County Counsel from simultaneously serving as mayor of a municipality in the same county. Although the inquirer argued persuasively that the prospect of actual conflict between the local housing authority and the county was remote, noting that none of the authority's properties abuts a state highway or county road and that the community is virtually fully developed, the Committee found that the local housing authority is a creature of the municipality and that critics are not so discerning as to appreciate the distinction between the municipality and the entities it is empowered to create. Referring the inquirer to Opinion 519, 111 N.J.L.J. 529 (1983) for a fuller discussion, the Committee concluded it would be ethically inappropriate to serve as counsel to a local housing authority while serving as county counsel for the county in which the municipality sits.

Currency note

This opinion was issued in 1985, before New Jersey's adoption of the 2004 revisions to the Rules of Professional Conduct (which abolished the freestanding "appearance of impropriety" standard underlying this line of opinions). 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 Treat this page as historical context, not current guidance.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: Can county counsel also be counsel to a municipal housing authority in the county?

A: No. The opinion held it ethically inappropriate, because the housing authority is a creature of the municipality and an attorney may not be counsel to both a municipality and its county.

Q: Does it matter that an actual conflict seems remote?

A: No. The opinion accepted that actual conflict was unlikely on the facts but found that public perception does not distinguish between the municipality and the entities it creates, so the dual role remained inappropriate.

Q: What rule bars serving both a municipality and its county?

A: Per the opinion, the Supreme Court held in In re Opinion No. 415 that an attorney, his partner, or associate may not be counsel to a municipality and to the county in which it is located.

Background and rules framework

The opinion applies New Jersey's conflict-of-interest and appearance-of-impropriety doctrine governing attorneys who serve multiple public entities, treating a municipal housing authority as an arm of its creating municipality. It builds on In re Opinion No. 415, 81 N.J. 318 (1979), and the Committee's Opinions 519 and 530.

Citations and references

Statutes:

• N.J.S.A. 55:14A-1 et seq. (municipal housing authorities)

Cases:

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

Other opinions cited:

• ACPE Opinion 519, 111 N.J.L.J. 529 (1983)
• ACPE Opinion 530, 113 N.J.L.J. 400 (1984) (Assistant County Counsel could not also be mayor of a municipality in the same county)

See also

• NJ ACPE Op. 568: Overlapping County and Municipal Legal Roles
• NJ ACPE Op. 622: County Counsel Appearing Before Local Boards
• NJ ACPE Op. 650: County Counsel and a Private Client (Completed Conduct)

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp560-1.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.

115 N.J.L.J. 614, May 23, 1985

OPINION 560

Conflict of Interest - County Counsel Representing Municipal Housing Authority in the Same County

We are asked whether county counsel may continue to represent a local Municipal Housing Authority in the same county. The local authority in question was created by the municipality pursuant to N.J.S.A. 55:14A-l et seq.

Our Supreme Court held in In re Opinion No. 415, 81 N.J. 318 (1979) that "[a]n attorney, his partner or associate may not be counsel to a municipality and to the county in which it is located." We held in Opinion 530, 113 N.J.L.J. 400 (1984) that an Assistant County Counsel could not serve simultaneously as Mayor of a municipality in the same county.

The inquirer argues persuasively that the prospect of actual conflict between the local Housing Authority and the county is remote, pointing out that none of the properties administered by the Housing Authority abuts upon a state highway or county road and that the community is virtually 100 percent developed. Nevertheless, the local Housing Authority is a creature of the municipality and critics are not so discerning as to appreciate the distinction between the municipality itself and those entities which it is empowered to create. The inquirer is referred to Opinion 519, 111 N.J.L.J. 529 (1983) for a thorough discussion of the principles involved.

In light of the foregoing, we must conclude that it would be ethically inappropriate to serve as counsel to a local Housing Authority while serving as county counsel for the county in which the municipality is situate.