Can a lawyer who is county counsel and a school board attorney appear before municipal boards where his father is a township committeeman?

Plain-English summary

A municipality's attorney was instructed by the township committee to seek the Committee's view on a politically active attorney whose father served on the township committee. That attorney had previously been a committeeman, mayor, and (in 1981) counsel to the township committee; he currently served as attorney to an elected Board of Education and as county counsel, and had appeared (and brought suits) before township bodies including the Planning Board and Zoning Board. The question, in several sub-parts, was whether he was prohibited from appearing before township bodies because he is county counsel, is Board of Education counsel, has a father on the committee, or had sued township bodies.

The Committee answered that he is not prohibited from appearing before municipal agencies (other than the Board of Education) for any of those reasons. It traced its precedents: Opinion 41 (a school board attorney for an elected board may represent clients before municipal boards and against the municipality, a distinction holding for elected, not appointed, boards); Opinion 204 (county counsel may not appear in municipal courts within the county, but may handle private-client matters before unrelated municipal bodies and may sue municipalities); and Opinion 360 (a parent's role in appointments does not alone support an inference of improper influence). The Committee noted the inquirer relied on general appearance-of-impropriety statements without citing any Rule of Professional Conduct or the full holdings of those opinions.

Because each of the attorney's activities was individually permissible, the Committee concluded all of them are permissible; the fact that he had to sue township bodies on behalf of clients tended to confirm he was not improperly influencing town judgments.

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 discussed here. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule mentioned here.

Common questions

Q: Does a parent serving on the township committee bar the lawyer from appearing before its boards?

A: Per the opinion, no, not by itself. Citing Opinion 360, the Committee said that when a parent is the appointing power, "that relationship alone does not call for an inference of improper influence."

Q: May a county counsel appear before municipal bodies for private clients?

A: Per Opinion 204 as applied here, yes, in matters unrelated to county duties, and county counsel may even sue municipalities; but county counsel may not appear in municipal courts within the county.

Q: May a lawyer for an elected school board appear before other municipal boards?

A: Per Opinion 41, yes for an elected board; the Committee maintained the distinction that the analysis differs for an appointed board.

Background and rules framework

The opinion rests on the Committee's prior conflict-of-interest and appearance-of-impropriety opinions rather than a numbered Rule of Professional Conduct (the Committee observed that the inquirer cited no RPC). It draws on Opinion 41 (elected school board counsel), Opinion 204 (county counsel), and Opinion 360 (a parent in the appointing power), and references the former DR 9-101(C).

Citations and references

Other opinions cited:

• ACPE Opinion 41, 87 N.J.L.J. 285 (1964) (elected school board attorney appearing before municipal boards)
• ACPE Opinion 204, 94 N.J.L.J. 445 (1971) (county counsel; municipal courts and municipal bodies)
• ACPE Opinion 360, 99 N.J.L.J. 1166 (1976) (attorney whose parent participates in appointments)

See also

• NJ ACPE Op. 650: County Counsel and a Private Client (Completed Conduct)
• NJ ACPE Op. 706: Assistant County Counsel Serving as a Municipal Council Member
• NJ ACPE Op. 627: Prosecutor Related to the Municipal Judge

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp622-1.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. 1420, December 1, 1988

OPINION 622

Conflict of Interest: County Counsel Representing Clients Before Local Boards in Municipality Where His Father is Township Committeeman

The inquirer advises that he represents a municipality in which a conflict is purported to exist regarding another attorney (presumably of a different political persuasion), and that the township committee instructed him to seek an opinion from us.

The target of the inquiry is the son of a township committeeman. He is also an attorney who has been politically active for a number of years. He had previously served as a committeeman and mayor. In 1981 he served as counsel to the Township Committee. He serves presently as attorney to the Board of Education and is county counsel. The Board of Education is an elective board. He has in the past appeared and presently appears before township boards, including the Planning Board and Zoning Board. He has in recent times instituted suits on behalf of clients, one against the Zoning Board and several against the Planning Board.

Culling through the material provided to this committee, a query appears containing several sub-parts:

Is the attorney prohibited from appearing before township bodies because (a) he is county counsel; (b) he is counsel to the Board of Education; (c) his father is mayor of the Township Committee; (d) he sued several township bodies?

We believe that he is not prohibited from appearing before municipal agencies other than the Board of Education for any of those reasons.

As early as 1964 in Opinion 41, 87 N.J.L.J. 285, this Committee held that a school board attorney for an elected board may represent clients before various municipal boards and may represent clients against the municipality in which the school district is located. A distinction was made as to attorneys representing an appointed board. That distinction is still valid.

Our Opinion 204, 94 N.J.L.J. 445 (1971) clearly held that county counsel may not appear in municipal courts located within the county, but that county counsel may handle matters for private clients before municipal bodies unrelated to county duties and may sue municipalities (and, therefore, bodies of the municipal government).

Opinion 360, 99 N.J.L.J. 1166 (1976) held:

Although care must be taken in dealing with both prospective clients and clients to observe DR 9-101(C), nevertheless, when an attorney's parent is the appointing power or participates in appointments, that relationship alone does not call for an inference of improper influence, and the attorney, or his associates, may appear before the public boards whose members are appointed by his parent.

The Opinion should be read for cautions contained therein.

Inquirer, who filed the required argument on the law, alluded to Opinion 360, supra., but did not set out the holding contained in the Opinion. For some reason he failed to refer to Opinions 41, supra or 204, supra. His contentions are general, arguing that in this case there is an appearance of impropriety. He does not cite any of the Rules of Professional Conduct, but relies on general statements contained in several of our opinions. We are of the opinion that because each of the activities which the attorney, as set forth in the factual situation presented to us is permissible, all of them are permissible. The fact that he was required to institute suit against several municipal bodies on behalf of his "aggrieved" clients appears to confirm the fact that he, because of his offices, is not influencing judgments in the town, and this would seem to negate any thought of improper influence.