Can a lawyer for a free public library's board of trustees represent private clients before the town's court and boards?

Plain-English summary

The inquirer served as counsel for the board of trustees of a local free public library and asked whether he and his firm could represent private clients before the municipal court, planning board, or board of adjustment in the municipality where the library is located. The Committee explained that free public libraries are created and funded under N.J.S.A. 40:54-1 by vote of the citizens, and that the board of trustees, while an adjunct of local government whose citizen members the mayor appoints, is a separate corporate entity with independent power to manage and operate the library (and even powers of acquisition and condemnation).

Because the board is independent and its funding is mandated by statute rather than left to the discretion of the municipal governing body, the Committee found it unlikely that a conflict with the governing body would arise, and concluded that representing the library board should not preclude the inquirer or his firm from representing private clients before the municipal court, planning board, or board of adjustment. Should such a conflict actually arise, the inquirer would have to withdraw and allow the board to be represented by other counsel. Noting the Supreme Court's philosophy that lawyers render public service, the Committee declined to let remote possibilities of conflict restrict the firm and found no appearance of impropriety.

The Committee added that the inquirer also represented a private organization being formed to establish a new public library that would lease premises to the current board. It agreed there would be a conflict in representing that organization in negotiations with the board, and that the inquirer could represent the organization on its development application, but cautioned that such representation must end once any negotiations begin between the private organization and the present board of trustees.

Currency note

This opinion was issued in 1990, before New Jersey's adoption of the 2004 revisions to the Rules of Professional Conduct; the appearance-of-impropriety standard the opinion applied was eliminated from the New Jersey Rules effective January 1, 2004. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule mentioned here.

Common questions

Q: Can the library board's lawyer also appear before the town's planning or zoning board for private clients?

A: Per the opinion, yes. Because the library board of trustees is independent of the governing body and is funded by statute rather than at the governing body's discretion, the Committee found such private representation does not create an appearance of impropriety.

Q: What happens if a conflict with the town's governing body actually arises?

A: The Committee said the lawyer would then have to withdraw and let the board be represented by other counsel; it declined to let remote possibilities of conflict restrict the firm, citing the policy that lawyers render public service.

Q: Can the same lawyer help a private group forming a new library?

A: The Committee agreed he could represent the private organization on its development application, but cautioned that the representation must end once any negotiations begin between the private organization and the existing board of trustees.

Background and rules framework

The opinion applied the conflict and then-existing appearance-of-impropriety standard (NJ RPC 1.7(c)(2); Model Rule 1.7) to a public-attorney's private practice, turning on the statutory independence of the library board of trustees under N.J.S.A. 40:54-1. It cited Opinion 294 for the general discussion of appearance of impropriety and conflicts arising from public attorneys representing private clients.

Citations and references

Rules of Professional Conduct:

• MR 1.7 / NJ RPC 1.7(c)(2) (conflict; appearance of impropriety, since eliminated)

Statutes:

• N.J.S.A. 40:54-1 (free public libraries)

Cases:

• Bd. of Trustees v. City of Union City, 112 N.J. Super. 484 (Ch. Div. 1970), aff'd, 116 N.J. Super. 186 (App. Div. 1971), the library board's status

Other opinions cited:

• NJ ACPE Op. 294 (97 N.J.L.J. 993), appearance of impropriety and public attorneys' private practice

See also

• NJ ACPE Op. 640: Insurer-Retained Town Defense Counsel and Private Practice
• NJ ACPE Op. 646: Board-of-Adjustment Member as Ad Hoc Town Attorney
• NJ ACPE Op. 656: Agency Counsel With a Councilman in the Firm

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp641-1.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.

125 N.J.L.J. 894, April 5, 1990

OPINION 641

Conflict of Interest: Counsel for Board of Trustees of Free Public Library Practicing Before Municipal Court and Boards

The Inquirer serves as counsel for the Board of Trustees of a local Free Public Library. He asks whether, as an associate of a law firm, he and his firm will be precluded from representing private clients before a municipal court, planning board or board of adjustment. We assume that he is referring to these entities in the municipality in which the library is located. Obviously, neither he nor his firm would be precluded from such representation in other municipalities.

Free public libraries are created by and operate in accordance with the provisions of N.J.S.A. 40:54-1. They come into being by vote of the citizens of the municipality and are funded by the municipality from tax revenues based upon a formula set forth in the statute.

The Board of Trustees is comprised of the mayor of the municipality, superintendent or other person heading up the educational system and from seven to nine residents of the municipality who are appointed by the mayor. The Board of Trustees is a separate corporate entity with independent power to manage and operate the library, but it is an adjunct of the local government. Bd. of Trustees v. City of Union City, 112 N.J. Super. 484 (Ch. Div. 1970) aff'd sub nom Bd. of Trustees of Free Pub. Library v. Union, 116 N.J. Super. 186 (App. Div. 1971).

In addition to its power to manage the property of the library, the Board of Trustees may purchase and acquire land and buildings, with the approval of the municipality, and even has the power of condemnation.

While it is an adjunct of the municipal government and its citizen members are appointed by the mayor, the Board of Trustees is independent and not controlled by the governing body of the municipality. Thus it seems clear that representation by the Inquirer of the library's Board of Trustees should not preclude him, or his law firm, from representing private clients before the municipal court, planning board or board of adjustment of the municipality.

Since the library's Board of Trustees is independent, and its funding is mandated by statute and not subject to the discretion of the municipal governing body, it is unlikely that a conflict with the governing body will arise. Should such a conflict arise, the Inquirer will have to withdraw and allow the Board of Trustees to be represented by other counsel. Bearing in mind, however, that it is the philosophy of our Supreme Court that lawyers render public service, we do not believe that remote possibilities of conflict should restrict the Inquirer or his law firm from representing private clients before the municipal court or municipal boards. We do not believe that such representation would give rise to any appearance of impropriety. See Opinion 294, 97 N.J.L.J. 993 (1974) (general and historical discussion of the appearance of impropriety and conflicts arising out of representation of private clients by public attorneys).

The Inquirer also states that a private organization is being formed to establish a new public library which would lease the premises to the current Board of Trustees. He represents the private organization and quite properly agrees that there would be a conflict in representing that organization in any negotiations with the Board of Trustees. He states, however, that he believes he should be able to represent the private organization in connection with its development application. We agree, but caution that such representation must end when any negotiations ensue between the private organization and the present Board of Trustees.