Can a municipal attorney represent individual town council members in their own private legal matters?

Plain-English summary

The inquirer asked whether a municipal attorney may represent individual township committee members in private matters involving their own affairs, unrelated to township business. The Committee began from RPC 1.13(a): in carrying out official duties, a municipal attorney represents the collective governing body, not the individual members. RPC 1.13(e) permits representing both the organization and an individual member, but only with the consent RPC 1.7 requires, and a public entity cannot give that consent (RPC 1.7(a)(2)). The Committee also noted that multiple representation may not be undertaken even with consent where an appearance of impropriety, as defined in RPC 1.7(c)(2), would be present.

Applying those limits, the Committee held that representing a municipality and a township committee member is not per se prohibited, but may be undertaken only if the interests of the organization and the individual member are not in any way intertwined. If the member's interests might require any approval, action, or issuance of a permit or license from a municipal agency or official, or if the municipality might be affected directly or indirectly, the representation should not be undertaken. The Committee gave examples: acquiring commercial or investment property that might require later local action would be barred, while purchasing a personal dwelling, drawing a personal will for the member or a family member, or handling a divorce generally would not.

The Committee added a further concern. Where governing-body members differ on a question on which the attorney must render an opinion, and that opinion might favor the faction of the attorney's individual client, the situation may create an appearance of impropriety requiring recusal, particularly where the relationship with the individual client is substantial.

Currency note

This opinion was issued in 1991, 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 Treat this page as historical context, not current guidance.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 town attorney also handle a council member's personal legal work?

A: Per the opinion, sometimes. Representation is not per se prohibited, but only if the member's interests are not in any way intertwined with the municipality's; if the matter might require municipal approval, action, or a permit, it is barred from the outset.

Q: Which private matters are usually fine, and which are not?

A: The Committee said acquiring commercial or investment property that might require later local action would be barred, while purchasing a personal dwelling, drawing a personal will for the member or a family member, or handling a divorce generally would not.

Q: Could the dual representation later force the attorney to step aside on town business?

A: Yes. The Committee noted that if governing-body members differ on a question the attorney must opine on, and the opinion might favor the client-member's faction, that may create an appearance of impropriety requiring recusal, especially where the individual-client relationship is substantial.

Background and rules framework

The opinion applied NJ RPC 1.13 (a lawyer for an organization represents the entity, not its individual members; Model Rule 1.13), including RPC 1.13(e) (dual representation of the entity and a member, subject to RPC 1.7 consent), the bar on public-entity consent in RPC 1.7(a)(2), and the appearance-of-impropriety standard in RPC 1.7(c)(2) (Model Rule 1.7). It cited the Supreme Court's disqualification decisions in Reardon and Dewey.

Citations and references

Rules of Professional Conduct:

• MR 1.13 / NJ RPC 1.13(a), 1.13(e) (organization as client; dual representation)
• MR 1.7 / NJ RPC 1.7(a)(2), 1.7(c)(2) (public-entity consent; appearance of impropriety, since eliminated)

Cases:

• Reardon v. Marlayne, Inc., 83 N.J. 460 (1980), disqualification standards
• Dewey v. R.J. Reynolds Tobacco Co., 109 N.J. 201 (1988), conflicts under the RPCs

See also

• NJ ACPE Op. 656: Agency Counsel With a Councilman in the Firm
• NJ ACPE Op. 662: Municipal Attorney Serving as Municipal Prosecutor
• NJ ACPE Op. 651: Declining a Conflict Inquiry About Completed Conduct

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp655-1.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.

129 N.J.L.J. 1038, December 9, 1991

OPINION 655

Conflict of Interest: Municipal Attorney Representing Members of Governing Body in Private Matters Unrelated to Township Business

The inquirer asks whether a municipal attorney may represent individual township committee members in private matters involving their own affairs which are unrelated to township business.

It is well recognized that in carrying out his official duties, a municipal attorney represents the collective governing body and not the individual members. This is based upon RPC 1.13(a) which states that a lawyer representing any organization represents the collective organization as distinct from directors, officers, employees, members and the like.

RPC 1.13(e) states that an attorney may represent both the organization and an individual member or members thereof, but this is followed by the caveat that if consent to dual representation is required by RPC 1.7, then it must be obtained before the dual representation is undertaken. It must be borne in mind, however, that a public entity cannot so consent. RPC 1.7(a)(2).

Our Supreme Court has ruled that multiple representation may not be undertaken even with consent where the appearance of impropriety would be present. Cf. Reardon v. Marlayne, Inc., 83 N.J. 460, 473 (1980); Dewey v. R.J. Reynolds, 109 N.J. 201, 213 (1988). RPC 1.7(c)(2) defines the appearance of impropriety as ... those situations in which an ordinary knowledgeable citizen acquainted with the facts would conclude that the multiple representation poses substantial risk of disservice to either the public interest or the interest of one of the clients.

Representation of a municipality and a township committee member is not per se prohibited. It may be undertaken, but only if the interests of the organization and the individual member are not in any way intertwined. If the interests of the member might require any sort of approval, action or issuance of a permit or license from a municipal agency or official, representation of those interests is barred from the outset. If the municipality might be affected directly or indirectly, the representation should not be undertaken. Thus, the representation of a member in acquiring commercial or investment property which might require later local action would be barred, although representation in purchasing a personal dwelling, as a general rule, would not. Neither the drawing of a personal will for the committee person or a family member, nor representation in a divorce, would be prohibited.

We have a further concern in connection with this type of dual representation. There may be occasions in the conduct of official business when there is a difference of opinion among members of the governing body as to which the attorney is called upon to render an opinion. If that opinion might favor the faction of which the attorney's client is a member, that situation may give rise to an appearance of impropriety which will cause the attorney to recuse himself. This is particularly true, although admittedly difficult, where the relationship with the individual client is substantial.