Can a lawyer serve at the same time as a township solicitor and as part-time attorney for the county welfare board?

Plain-English summary

In Opinion 568, the Committee had held that an attorney could not simultaneously represent a township as its solicitor and serve as attorney for the county welfare board, and had directed him to give up one post. The inquirer petitioned the Supreme Court for review, asserting there was no actual or potential conflict, and the Committee requested and received additional facts.

It emerged that the inquirer was one of three part-time attorneys for the county welfare board, handling civil litigation to recover improperly paid assistance, reviewing welfare-fraud reports before submission to the county prosecutor, and advising on fraud investigations, with no involvement in any municipality's welfare matters. The Committee described the separate statutory schemes: municipal public assistance is administered by the Local Assistance Board (N.J.S.A. 44:8-115 et seq.), while county public assistance is administered by the autonomous County Welfare Board (N.J.S.A. 44:1-11), funded differently. The possible conflict it had cited in Opinion 568, hospital-rate disputes under N.J.S.A. 44:8-104, was no longer apposite because those rates are fixed by statute and any dispute would be between the municipality and the Board of Freeholders, not the welfare board. On the additional information and a reconsideration of the statutes, the Committee concluded its former finding was incorrect: the inquirer's duties do not conflict, and there is no ethical reason he cannot serve in both positions.

Currency note

This opinion was issued in 1986, before New Jersey's adoption of the 2004 revisions to the Rules of Professional Conduct, which abolished the "appearance of impropriety" standard underlying conflict opinions of this era. 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 Treat this page as historical context, not current guidance.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 township solicitor also be a county welfare board attorney?

A: Per this opinion, yes, on these facts. The Committee overruled Opinion 568 and found no conflict where the inquirer had no dealings with any municipality's welfare matters.

Q: Why did the Committee change its position from Opinion 568?

A: With fuller facts, the opinion found that the municipal and county assistance functions are governed by separate statutes and bodies, and that the hospital-rate conflict it had previously identified did not in fact arise.

Background and rules framework

The opinion analyzes a dual-public-role conflict by examining the statutory separation between municipal assistance under the Local Assistance Board (N.J.S.A. 44:8-115 et seq.) and county assistance under the autonomous County Welfare Board (N.J.S.A. 44:1-11), and the rate provisions of N.J.S.A. 44:8-104. Finding the functions distinct, it overruled its contrary conclusion in Opinion 568.

Citations and references

Statutes:

• N.J.S.A. 44:8-115 et seq. (Local Assistance Board; municipal public assistance)
• N.J.S.A. 44:1-11 (County Welfare Board)
• N.J.S.A. 44:8-104 (hospital rates for county services to municipal welfare recipients)
• N.J.S.A. 44:5-1 through 5-19

Other opinions cited:

• ACPE Opinion 568, 116 N.J.L.J. 244 (1985) (overruled)

See also

• NJ ACPE Op. 606: Counsel to a Regional Utilities Authority Appearing Before a Member Town's Zoning Board
• NJ ACPE Op. 602: A Municipal Judge's Partner and Forfeiture Work

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp590-1.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.

118 N.J.L.J. 94, July 24, 1986

OPINION 590

Conflict of Interest - Township Solicitor Serving as Attorney for County Welfare Board (Overrules Opinion 568)

In our Opinion 568, 116 N.J.L.J. 244 (1985) we held that an attorney (not the County Attorney) may not represent a township as its solicitor and also represent the County Welfare Board. We said that the attorney must relinquish one of these posts.

The inquirer filed a Petition for Review with our Supreme Court stating that there was no conflict either actual or potential in his holding the two positions. Because of the paucity of the facts originally submitted, we requested additional information from the inquirer. It has now been furnished.

It appears that he is one of three attorneys representing the County Welfare Board in his county on a part-time basis. His duties consist of civil litigation to recover assistance of payments improperly made to clients, review of welfare fraud reports before submission to the county prosecutor and supplying advice in connection with fraud investigations. He does not have any dealings with any welfare assistance problems of any of the municipalities in the county.

At the municipal level, public assistance is rendered by the Local Assistance Board (N.J.S.A. 44:8-115, et seq.) appointed by the governing body of the municipality. At the county level, public assistance is administered by the County Welfare Board (or County Board of Social Services), the members of which are appointed by the Board of Chosen Freeholders of each county (N.J.S.A. 44:1-11). The County Welfare Board is an autonomous body and not a department of the county government.

Responsibilities of the Local Assistance Board and the County Welfare Board are different and separate. They are governed by different statutes and receive different funding. We are advised that funding for municipal welfare is provided by a contribution of 75% from the state and 25% from municipal funds. Funds for county welfare are supplied by a grant of 50% from the federal government, 37 1/2% by the state and 12 1/2% by the county.

As an example of a possible conflict in the positions held by the inquirer, we referred in Opinion 568 to the provisions of the statute relating to hospital rates for services furnished by the County to municipal welfare recipients (N.J.S.A. 44:8-104). That reference now appears not to be apposite since there can be no dispute between the municipality and the county as to rates, the latter being fixed by statute and, therefore, not subject to dispute. Further, even if there were any dispute, it would be between the municipality and the Board of Freeholders. The County Welfare Board would not be involved (N.J.S.A. 44:5-1 through 5-19).

On the basis of the additional information submitted and a reconsideration of the various statutes involved, we conclude that our former finding was incorrect and that the duties of the inquirer, as they are outlined in his request for advice, do not conflict and there is no ethical reason why he cannot continue to serve in both of his present positions.