Will the ethics committee decide a conflict question about something the lawyer's firm has already done?

Plain-English summary

A township attorney represented the township in opposing the expansion and operations of a privately owned public airport. One member of the governing body, a neighbor of the airport with his own private air strip, had a partner in the township attorney's firm write a single letter to a federal agency on the member's behalf, asking why his earlier inquiries about altered flight patterns had gone unanswered. The attorney asked whether that one letter, with no further action, prevented his firm from continuing to represent the township in opposing or negotiating with the airport.

Rather than reach the conflict question, the Committee noted that, as in Opinion 650, the township attorney premised the inquiry on actual facts that had already occurred, not on contemplated future conduct. On that basis it referred the inquirer to Opinion 650, which holds that the Committee advises only on projected conduct and does not opine on completed conduct.

Currency note

This opinion was issued in 1991, before New Jersey's adoption of the 2004 revisions to the Rules of Professional Conduct. The Court Rules governing the Committee's jurisdiction may have been amended since. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule mentioned here.

Common questions

Q: Did the committee answer whether the township attorney had a conflict?

A: No. Per the opinion, because the inquiry was premised on actual facts that had already occurred, the Committee declined and referred the inquirer to Opinion 650.

Q: What was the underlying situation?

A: A township attorney represented the township in opposing a private airport's expansion; a council member who neighbored the airport had a partner in the attorney's firm write a single inquiry letter to a federal agency about the member's private air strip, and the attorney asked whether that barred the firm from continuing to represent the township.

Background and rules framework

Like Opinion 650, the opinion rests on R. 1:19-2 and the Committee's practice of opining only on contemplated future conduct, not on conduct that has already occurred. It does not reach the merits of the conflict question.

Citations and references

Court Rules:

• R. 1:19-2 (the Committee's advisory jurisdiction)

Other opinions cited:

• NJ ACPE Op. 650 (128 N.J.L.J. 2), the Committee does not opine on completed conduct

See also

• NJ ACPE Op. 650: The Committee's Jurisdiction Over Completed Conduct
• NJ ACPE Op. 655: Town Lawyer Representing Officials' Private Matters

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp651-1.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.

128 N.J.L.J. 18, May 2, 1991

OPINION 651

Conflict of Interest - Municipal Attorney Representing Township in a Matter also Acting on Behalf of a Member of the Governing Body With a Private Interest in the Same Matter

A Township Attorney makes the following inquiry: Assume the governing body of a Township in which a privately owned public airport is located has actively opposed and continues to oppose the airport on matters related to its expansion and particular operations and has directed its Township Attorney to represent it in such matters. Assume further that one member of the governing body is an immediate neighbor of the airport who has an active private air strip on his premises and previously authorized flight patterns, designed for safety in takeoffs and landings, were changed by the appropriate federal agency to the detriment of the private air strip. Assume further that the owner of the strip over a period of eight (8) months wrote three letters of inquiry to the federal agency and received no response so asked a partner in the law firm of the Township Attorney to write and request an answer which letter was written and directed to said agency. Could such letter request, with no other action taken or to be taken by the law partner, prevent the Township Attorney from continuing to represent the Township in all its municipal business and particularly in its further opposition to, or possible settlement negotiations with, the privately owned public airport?

As is the case with Opinion 650, 128 N.J.L.J. 2 (1991), the Township Attorney premises his inquiry on actual facts which occurred before the inquiry was made. In that respect, we refer the Inquirer to Opinion 650, supra, 128 N.J.L.J. 2.