Can a city attorney who serves on the board of a legal services corporation defend the city against suits brought by that corporation's clients?

Plain-English summary

The Committee was asked whether a city attorney may continue to serve as a board member of a regional legal services corporation, in order to avoid possible conflicts if a client of that corporation sues the city and the board-member city attorney must defend. The inquiry noted that the National Legal Services Corporation encourages board service by government officials.

The Committee recalled its Opinion 218, 94 N.J.L.J. 801 (1971), which held that a legal services corporation may not defend a matter in which one of its board members represents the plaintiff, reached even though board members do not control client files and may be insulated from such data. The present inquiry posed the reverse: whether a board member who is the city attorney may defend the city in matters brought against it by the corporation's clients, despite having no knowledge of the client's file.

While acknowledging the value of having governmental personnel participate beyond their official roles, the Committee concluded it would be improper for a city attorney who sits on a legal services board to defend suits brought against the city by clients of legal services, reasoning that public confidence in governmental agencies is important enough that situations carrying a risk of compromise should be avoided. It considered the alternative of assigning the defense to outside counsel, but held that, unlike the situation where a board member sues a person seeking the corporation's aid, the public interest is not served by such an assignment here, so the city attorney should leave the board.

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 the Committee invoked). 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 Treat this page as historical context, not current guidance.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 a city attorney sit on a legal services corporation board and still defend the city against that corporation's clients?

A: No. The opinion held it would be improper for the board-member city attorney to defend such suits, and concluded he should leave the board.

Q: Does it cure the problem to insulate the board member from client files?

A: No. The opinion noted board members already lack control over client files, yet it still found the dual role improper because of the risk of compromise to public confidence.

Q: Could the city just assign the defense to outside counsel?

A: The opinion considered that but found the public interest was not served by such an assignment in this situation, so it concluded the city attorney should leave the board instead.

Background and rules framework

The opinion applies New Jersey's conflict-of-interest and appearance-of-impropriety doctrine to a government lawyer's outside board service, focusing on preserving public confidence in governmental agencies. It builds on the Committee's Opinion 218, which addressed the mirror-image situation of a legal services corporation defending a matter in which a board member represented the plaintiff.

Citations and references

Other opinions cited:

• ACPE Opinion 218, 94 N.J.L.J. 801 (1971) (legal services corporation may not defend a matter in which a board member represents the plaintiff)

See also

• NJ ACPE Op. 560: County Counsel Representing a Municipal Housing Authority in the Same County
• 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/acp567-1.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.

116 N.J.L.J. 244, August 15, 1985

OPINION 567

Conflict of Interest - Legal Services Board Member also City Attorney

We are asked whether or not a City Attorney may continue to participate as a board member of a regional legal services corporation in order to avoid possible "conflict of interest" situations in the event a client of the legal services corporation brings suit against the City which that Board member must then defend.

We understand that the policy of the National Legal Services Corporation encourages board service by government officials.

In our Opinion 218, 94 N.J.L.J., 801 (1971), we held that a legal services corporation may not defend a matter in which one of its Board members represents the plaintiff. We came to this conclusion notwithstanding that Board members of a legal service corporation do not control clients' files and may be "insulated" from such data.

Here we are asked the reverse: May a board member who is the City Attorney defend the City in matters brought against the City by the legal services corporation even though as a board member that attorney has no knowledge of its client's file.

While we appreciate the importance of having governmental personnel participate in matters other than their official roles, it is our opinion that it would be improper for a City Attorney who sits on a legal services board, to defend suits brought against the City by clients of legal services. The confidence of the public in its governmental agencies is so important that situations where a risk of compromise is possible should be avoided.

It may be said that the defense may be assigned to other counsel outside of the City Attorney's office. While this solution is appropriate for a case where such a board number sues a person who seeks the aid of a legal services corporation, the public interest is not served by such an assignment. Hence, the City Attorney should leave the board.