If a lawyer who represented the plaintiff joins the firm defending the public board, can that firm keep defending the board in the pending case?
Apply this to your situation
This page answers the general question as of 1987. 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 inquirer's firm represented a defendant Township Board of Adjustment in a still-pending suit challenging the denial of a variance. The plaintiff's substituted counsel, Attorney B, had conferred with the plaintiff and prepared the trial brief, then withdrew and joined the inquirer's firm as a partner. The inquirer asked whether his firm could continue to represent the Board and argue the merits before the trial judge.
The Committee said no. Citing Opinion 353, it noted that a public body cannot consent to an attorney continuing in the face of a conflict, so the Board could not waive the problem. Citing Opinion 342, where a former associate who had worked on a plaintiff's malpractice claim could not later represent the defendant physician in a pending matter, the Committee concluded that the inquirer's firm should not continue to represent the Township Board of Adjustment and should withdraw as counsel.
Currency note
This opinion was issued in 1987, 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 Treat this page as historical context, not current guidance.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 firm keep defending a public board after the plaintiff's lawyer joins the firm mid-case?
A: Per the opinion, no. The Committee held that the firm should withdraw as counsel to the Township Board of Adjustment.
Q: Could the board consent to let the firm continue?
A: No. Relying on Opinion 353, the Committee stated that a public body cannot give consent to an attorney continuing despite a conflict of interest.
Background and rules framework
The opinion applies the Committee's conflict precedents rather than a numbered Rule of Professional Conduct. Opinion 353 established that a public body cannot consent away a conflict; Opinion 342 treated a side-switching lawyer's prior involvement as disqualifying the new firm in a related pending matter. Together they support requiring withdrawal here.
Citations and references
Other opinions cited:
- ACPE Opinion 353, 99 N.J.L.J. 862 (1976) (a public body cannot consent to a conflicted attorney continuing)
- ACPE Opinion 342, 99 N.J.L.J. 610 (1976) (former associate's prior work disqualifies the new firm)
See also
- NJ ACPE Op. 606: Counsel to a Regional Utilities Authority Appearing Before a Member Town's Zoning Board
- NJ ACPE Op. 610: Police-Officer Attorney Defending in His Own Town's Court
Source
- Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp607-1.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.
120 N.J.L.J. 896, November 5, 1987
OPINION 607
Conflict of Interest: Continued Representation of Board of Adjustment Where New Partner Formerly Represented Plaintiff in Action Against Board
The inquirer represents a defendant Township Board of Adjustment. Plaintiff brought an action challenging the denial of his application for a variance to construct an office building. Attorney B was substituted as counsel for the plaintiff in the law suit. He conferred with the plaintiff and he prepared the trial brief. The action is still pending. Attorney B, subsequently joined the inquirer's law firm as a partner and has withdrawn as counsel to the plaintiff.
Inquirer asks whether his firm may continue to represent the Township Board of Adjustment to argue the merits of the case before the trial judge.
In Opinion 353, 99 N.J.L.J. 862 (1976), we held that a public body cannot give its consent to an attorney continuing by reason of a conflict of interest. The inquirer cannot obtain the consent of his client, the Board of Adjustment, to continue.
In Opinion 342, 99 N.J.L.J. 610 (1976), we held that a former associate of a law firm which was representing a plaintiff in a malpractice action against a physician, who terminated his association with the prior law firm and joined his present firm, should not represent the physician in a pending matrimonial action, which was unrelated to the malpractice suit. We stated that the former associate and his present firm's continued representation of the physician in the pending matrimonial action would be improper.
In our opinion, the inquirer should not continue to represent the Township Board of Adjustment in this action and should withdraw as counsel.
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