Can a lawyer become a school board's attorney right after the lawyer's partner finishes a term as a member of that board?

Plain-English summary

The inquiry asked whether the law partner of a school board member could serve as the board's attorney immediately after the partner's term on the board expired. The Committee noted that N.J.S.A. 18A:12-1.1 bars hiring a board member by the board until six months after the member resigns or ceases to be a member, and that whether the six-month period applies when service ends by expiration of a term is a question of statutory interpretation not normally within an ethics opinion's function.

The Committee held that, for ethics reasons independent of the statute, both the former board member and his partner should not serve as the board's attorney for six months following the member's service. It relied on Opinion 70, under which neither an attorney nor his partner may appear before a public body of which he is a member, and which bars later representation in matters relating to the body's proceedings during the member's service, to avoid "the suspicion that the private employment ... was a reward for the attorney's earlier favorable vote or influence." It cited the Supreme Court's decision reviewing Opinion 361, which barred an assistant prosecutor's criminal representation in his county for six months after leaving office to avoid the appearance of impropriety even where none exists, and Opinion 33, which barred a library board member from serving as that board's attorney.

Currency note

This opinion was issued in 1988, before New Jersey's adoption of the 2004 revisions to the Rules of Professional Conduct, which abolished the "appearance of impropriety" standard the Committee relied on here. Treat this page as historical context, not current guidance. Verify against current rules and the current text of N.J.S.A. 18A:12-1.1 before relying on any specific rule or period mentioned here.

Common questions

Q: Can a lawyer be the school board's attorney right after the lawyer's partner leaves the board?

A: Per the opinion, no, not within six months. The Committee concluded both the former member and his partner should not serve as the board's attorney for six months following the member's service.

Q: Did the conclusion depend on interpreting the school-board statute?

A: No. The Committee reached the six-month conclusion "regardless of the interpretation of the statute," on ethics grounds drawn from its prior opinions.

Q: Why does the partner, not just the former member, have to wait?

A: Citing Opinion 70, the Committee applied the bar to the partner as well to avoid the suspicion that private employment after public service was a reward for the member's earlier vote or influence.

Background and rules framework

The opinion rests on the Committee's appearance-of-impropriety precedents rather than a numbered Rule of Professional Conduct, drawing on Opinion 70 (a member and his partner may not appear before or later represent matters of a body the member served), the Supreme Court's decision reviewing Opinion 361 (a six-month post-office bar for an assistant prosecutor), and Opinion 33 (a board member may not serve as the board's attorney). It references but declines to construe N.J.S.A. 18A:12-1.1.

Citations and references

Statutes:

• N.J.S.A. 18A:12-1.1 (six-month waiting period before a board may hire a former member)

Cases:

• In re Advisory Opinion No. 361, 77 N.J. 199 (1978), six-month post-office bar; appearance of impropriety

Other opinions cited:

• ACPE Opinion 70, 88 N.J.L.J. 161 (1965) (member and partner may not appear before or later represent matters of the body)
• ACPE Opinion 33, 87 N.J.L.J. 249 (1964) (board member may not serve as the board's attorney)

See also

• NJ ACPE Op. 707: Board of Education Member Serving as Municipal Attorney
• NJ ACPE Op. 641: Counsel to a Free Public Library Board and Private Practice
• NJ ACPE Op. 646: Board of Adjustment Member as an Ad Hoc Special Attorney

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp619-1.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.

122 N.J.L.J. 1246, November 10, 1988

OPINION 619

Conflict of Interest: Board of Education Attorney Appointed after Attorney's Partner Leaves Board as Member

This inquiry asks the propriety of a partner of an attorney who is a school board member serving as the board's attorney immediately after the expiration of his partner's term on the board.

N.J.S.A. 18A:12-1.1 prohibits school board members being hired by the board until six months have transpired after resigning or ceasing to be a member. Whether the six month waiting period applies in the situation where the cessation is the result of the expiration of the term is a matter of statutory interpretation, which is normally not the function of an ethics opinion. But for reasons discussed here, both the former board member and his partner should not serve as the board's attorney for six months following the board member's service, regardless of the interpretation of the statute.

It is well established that neither an attorney nor his partner may appear before a public body of which he is a member. Opinion 70, 88 N.J.L.J. 161 (1965). Moreover, an attorney in such a position may not subsequently represent clients, before the public body or elsewhere, in matters which relate to the public body's proceedings when he served as a member. Id. In that opinion, involving membership on a board of adjustment, such a situation, "... invite[s] the suspicion that the private employment in matters subsequent to public proceedings was a reward for the attorney's earlier favorable vote or influence." Id.

The Supreme Court has held, the case of an assistant prosecutor, not only that he may not represent any parties for whom there was prosecutor's office activity during his term of office, but that all criminal representation in his county is barred for six months after leaving office. In re Advisory Opinion No. 361, 77 N.J. 199 (1978). Although holding that his disqualification was personal only to the assistant prosecutor involved, and was not applicable to his partners, the Court held that New Jersey's broad approach of disqualification of a person in public office is necessary to "...avoid the appearance of impropriety even if none exists." Id. at 206.

The conflict which occurs when an attorney represents a public body of which he is a member was also considered in Opinion 33, 87 N.J.L.J. 249 (1964). There it was determined that a library board member could not serve as the group's attorney. The inherent danger of conflict and appearance of impropriety in such a situation was violative of Canon 6, it was said. That Canon prohibited dual representation in many instances, and this meant, according to the opinion, that "[a]n attorney should avoid conflicting interests unaffected by his own personal interest" (including his interest as a public official).