Can a municipal attorney who heads the town's law department represent a pedestrian injured in an accident within the municipality?

Plain-English summary

The inquiry asked whether an individual who is the attorney for a municipality and has complete charge of its law department and legal affairs could represent a pedestrian who was struck by an automobile within the municipality. A routine police investigation was made, but the police department took no action because its investigation did not reveal the need for any prosecution. The inquirer stated that no member of the law department was contacted about the case, and that the municipal prosecutor and other law-department staff (who work under his general direction and supervision) were not solicited or used.

The Committee agreed with the inquirer that its earlier Opinion 32 did not prohibit his accepting the case on these facts, and held that under the facts stated he was not precluded. It reiterated, however, the caution from Opinion 32 that an attorney in these situations must exercise great care in accepting such cases so as to avoid the suspicion that he is using his municipal office to further his professional practice.

Currency note

This opinion was issued in December 1964, before New Jersey's September 13, 1971 adoption of the Disciplinary Rules (Code of Professional Responsibility), and well before the 1984 Rules of Professional Conduct and all later revisions. It applied the conflict-of-interest principles of the former Canons of Professional Ethics. Conflicts of interest are now treated under RPC 1.7. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.

Common questions

Q: Can a municipal attorney represent a private client in a civil case arising from an accident in the same town?

A: On these facts, yes. The Committee held the municipal attorney was not precluded from representing the injured pedestrian, where the police took no action and no member of the law department was involved.

Q: What made it permissible here?

A: The Committee relied on the facts that the police investigation revealed no need for prosecution, no member of the law department was contacted, and the prosecutor and staff were not used, so the matter did not involve the law department's work.

Q: Did the Committee attach any caution?

A: Yes. It reiterated Opinion 32's caution that an attorney in such situations must exercise great care to avoid the suspicion that he is using his municipal office to further his professional practice.

Background and rules framework

The opinion applied the conflict-of-interest principles of the former Canons of Professional Ethics, building on the Committee's Opinion 32. In current New Jersey terms, the conflict analysis falls under RPC 1.7.

Citations and references

Rules of Professional Conduct (as in effect at the time):

• Canons of Professional Ethics (conflict of interest; municipal attorney)

Other opinions cited:

• N.J. ACPE Opinion 32, 87 N.J.L.J. 185 (1964): caution against using municipal office to further private practice

See also

• NJ ACPE Op. 65: Conflict of Interest, Municipal Tax Attorney
• NJ ACPE Op. 64: Conflict of Interest, Member of a Municipal Parking Authority
• NJ ACPE Op. 104: Municipal Prosecutor Defending a Municipal Employee

Source

• Landing page: https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp62-1.html

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

87 N.J.L.J. 778
December 3, 1964

Conflict of Interest - Municipal Attorney

The inquiry in this case is whether an individual who is the attorney for a municipality and has complete charge of its law department and legal affairs can represent a pedestrian who was struck by an automobile within the municipality.

A routine police investigation was made in connection with the accident, but the police department took no action since its investigation did not reveal the necessity for any prosecution.

The inquirer states that no member of the law department was contacted concerning the case, nor were the services of the municipal prosecutor or other members of the law department staff solicited or utilized. In this municipality, the municipal prosecutor works under the general direction and supervision of the inquirer, as head of the law department.

The inquirer states that he does not believe that our N.J. Advisory Committee on Professional Ethics, Opinion 32, 87 N.J.L.J. 185 (1964), prohibits his accepting this case. We agree that under the facts stated he is not precluded. However, we iterate what was stated in the cited opinion, i.e., that an attorney in these situations must exercise great care in accepting such cases so as to avoid suspicion that he is using his municipal office to further his professional practice.