Can one attorney be both county counsel and a township prosecutor in that county, and can another be both a township solicitor and counsel to the county welfare board?
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This page answers the general question as of 1985. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
The Committee was asked two questions: first, whether it is proper for one attorney to be both County Attorney and prosecutor of a township within the same county; and second, whether a different attorney may at the same time represent a township as its solicitor and also serve as attorney for the County Welfare Board.
On the first question, analyzing the duties of the two offices, the Committee concluded that one person occupying both will not lead to a conflict: as County Attorney he is engaged only in civil activities for the county, while as prosecutor he prosecutes only criminal matters for the township. On the second question, the Committee held that the attorney should not represent both the township and the County Welfare Board. The inquirer had argued there was no conflict because most welfare-board money comes from the federal government, but the Committee read the General Public Assistance statutes to show potential conflicts between county welfare departments and townships. It cited N.J.S.A. 44:8-104, under which the cost of hospitalization furnished to a relief case in a county hospital is certified to the township's Director of Township Aid for payment, which can produce disputes over rates, necessity, and length of stay. Because public-assistance funds flow from federal, state, and county sources down to the township, the Committee concluded the attorney must relinquish either the township solicitor post or the welfare-board post.
Currency note
On review of Opinion 568, the Committee reconsidered the welfare-board question in Opinion 590 (1986) and reversed it, concluding on additional facts and a closer reading of the statutes that its earlier finding was incorrect and that the same attorney may serve as both township solicitor and county welfare board counsel. The first holding (county counsel and township prosecutor do not conflict) was not disturbed.
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). 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 the same lawyer be county counsel and a township prosecutor in that county?
A: Yes, per this opinion. The Committee found no conflict because the county role is purely civil and the prosecutor role is purely criminal.
Q: Can a township solicitor also serve as county welfare board counsel?
A: Opinion 568 said no and required the lawyer to give up one post, but Opinion 590 (1986) later reversed that conclusion and permitted both roles.
Q: Why did the Committee originally see a conflict in the welfare-board role?
A: It read the General Public Assistance statutes, including N.J.S.A. 44:8-104 on certifying county-hospital costs to the township, as creating potential disputes between the county welfare board and the township over rates, necessity, and length of stay.
Background and rules framework
The opinion applies New Jersey's conflict-of-interest and appearance-of-impropriety doctrine to attorneys holding dual county and municipal public roles, turning on whether the two offices have adverse or overlapping interests. It builds on Opinion 415 and the Supreme Court's review in In re Opinion 415, 81 N.J. 318 (1979), which addressed the limits on a county attorney also representing municipalities or subdivisions within the same county.
Citations and references
Statutes:
- N.J.S.A. 44:8-104 (certification of county-hospital costs for relief cases to the township)
Cases:
- In re Opinion 415, 81 N.J. 318 (1979) (limits on county counsel representing municipalities in the same county)
- Essex Cty. Welf. Bd. v. Dept. of Inst. & Agencies, 75 N.J. 232 (1978) (public-assistance funding)
Other opinions cited:
- ACPE Opinion 415, 103 N.J.L.J. 38 (1979)
See also
- NJ ACPE Op. 590: Township Solicitor and County Welfare Board (reversing Op. 568)
- 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
Source
- Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp568-1.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 568
Conflict of Interest - County Attorney Serving as Municipal Prosecutor; and Township Solicitor Serving as Attorney for County Welfare Board
We are asked to advise whether: (1) It is proper for an attorney to be both County Attorney and Prosecutor of a township within the same county; and (2) in the same township, may an attorney (not the County Attorney) at the same time represent a township as its solicitor and also be attorney for the County Welfare Board.
For general discussion of the limitations on the County Attorney representing townships or subdivisions within the same county, see our Opinion 415, 103 N.J.L.J. 38 (1979); In re Opinion 415, 81 N.J. 318 (1979).
An analysis of the duties of the County Attorney and Township Prosecutor leads to the conclusion that the fact that one person occupies both offices will not lead to any conflict. As the County Attorney, the attorney is engaged only in civil activities for the County. As a prosecutor, he will be engaged in prosecuting only criminal matters for the township. No conflict between these positions is discerned.
With respect to the second question, it is our opinion that the attorney should not represent both the township and the County Welfare Board. The inquirer advised us that, in the latter situation, the attorney believes there is no conflict because most of the money obtained by the Welfare Board comes from the Federal government.
A reading of the various statutes on the subject of General Public Assistance indicates that there may very well be conflicts from time to time between the County Welfare Departments of the Township within the County. To cite one example, N.J.S.A. 44:8-104 provides that, where hospitalization has been furnished to a bona fide relief case in a County hospital, the cost of that hospitalization is certified to the Director of Township Aid for the Township in which the individual resided, and the Director of Township Aid must make payment to the County for the services rendered the welfare patient. This can obviously lead to disputes as to rates, necessity for hospitalization, length of stay, etc. Funds furnished under general public assistance programs come from several sources, federal, state and county and finally funnel down to the Township. Cf. Essex Cty. Welf. Bd. v. Dept. of Inst. & Agencies, 75 N.J. 232 (1978).
We, therefore, conclude that the attorney must relinquish either his position as Township Solicitor or attorney to the County Welfare Board.
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