In New Jersey, can a lawyer (or the lawyer's partners) who represents a municipal board or agency also represent private clients in that municipality's court or before its other agencies?

Plain-English summary

Opinion 697 responds to an inquiry from a lawyer whose partner serves as a township zoning board attorney or housing authority attorney, asking whether the lawyer may represent private clients on traffic and disorderly-persons matters in that township's municipal court. The inquirer assumed no actual conflict; the Committee disagrees.

The Committee traces a consistent line of authority back to its 1963 Opinion 4 and a 1963 Notice to the Bar: a lawyer who represents a municipality or any of its agencies has the entire municipality as the client, and may not represent a private client whose interests are adverse to the public entity, including before any board, agency, commission, or other part of the municipality. The Committee acknowledges that the Supreme Court's discussion in the Opinion 621 matter rested in part on the now-abolished "appearance of impropriety" rule, but explains that its conclusion does not depend on that rule: once the client is determined to be the municipality itself, representing a private client before or against one of its subordinate instrumentalities is a concurrent conflict under RPC 1.7. New Jersey Court Rule 1:15-3(b) separately bars municipal attorneys from representing private clients in their municipality's court.

The dispositive question is whether the entity the lawyer represents is in fact part of the municipality. The Committee restates the test from its Opinion 292: a body is an instrumentality of the municipal government if it is subject to the government's budgetary, membership, or decision-making control. Bodies not subject to any of those controls are autonomous and are not treated as part of the municipality for conflict purposes; the Committee gives the examples of a municipal fire district whose commissioners are elected and whose budget is set by referendum, an elected school board, and a municipal public defender (who does not represent the municipality).

Applying the test, the Committee holds that a lawyer, firm, or office associate who represents a municipal body subject to the governing entity's budgetary, membership, or decision-making control is precluded from representing a private client before, or in litigation against, the governing body or any office, department, board, commission, or agency subject to that same control, and specifically here before the municipal court. The Committee notes the reasoning may extend to county government but, quoting the Opinion 621 matter, declines to extend it to State agencies because the State is too varied to treat as one monolithic client. It observes a question under RPC 1.8(k) but does not reach it, because RPC 1.7 already prohibits the representation.

In practice

The opinion holds that, under New Jersey's RPC 1.7 as it stood at the time, a lawyer who represents a controlled municipal agency cannot take private clients before that municipality's court or its other controlled bodies, and that the bar is imputed to the lawyer's firm and office associates. Per the opinion, the test for whether a body counts as part of the municipality is budgetary, membership, or decision-making control (Opinion 292); autonomous bodies such as an elected school board, a referendum-funded fire district, or a municipal public defender fall outside the rule. The opinion frames the practical choice for counsel to an adjunct municipal agency as electing either to represent the agency (and thereby foreclose the lawyer and the firm from practicing before the municipality's bodies) or to decline the agency and keep the private practice. Because this opinion is more than five years old and the surrounding rules (including the 2004 abolition of the appearance-of-impropriety standard it discusses) have continued to evolve, verify the current rules and Court Rules before relying on the specific provisions it cites.

Common questions

Q: My partner is the township zoning board attorney. Can I handle a traffic case in that township's municipal court?

A: No, under this opinion. The Committee holds that counsel to a controlled municipal agency has the whole municipality as a client, so the lawyer and the firm are barred by RPC 1.7 (and by Court Rule 1:15-3(b)) from representing private clients in that municipality's court.

Q: How do I tell whether a board counts as part of the municipality?

A: Per the opinion's test from Opinion 292, a body is an instrumentality of the municipal government if it is subject to that government's budgetary, membership, or decision-making control. If it is subject to any one of those controls, it is part of the municipality for conflict purposes.

Q: Does the conflict apply to autonomous bodies like an elected school board?

A: No. The opinion treats bodies not subject to municipal budgetary, membership, or decision-making control as autonomous; it gives an elected school board, a fire district funded by referendum, and a municipal public defender as examples that fall outside the rule.

Q: Does the same bar apply to lawyers who represent State agencies?

A: No. The opinion declines to extend the reasoning to State agencies, because the State is too varied and multifaceted to be regarded as one unitary client, though it notes a similar conclusion may apply to county government.

Background and rules framework

The opinion interprets RPC 1.7 (Model Rule 1.7), New Jersey's concurrent-conflict rule, together with New Jersey Court Rules 1:15-3(b) and 1:15-5(b), which restrict municipal attorneys' private practice. The analysis turns on identifying the client: once the represented municipal body is found to be an instrumentality subject to the municipality's budgetary, membership, or decision-making control (the Opinion 292 test), the lawyer's client is the entire municipality, and representing a private client before or against another municipal instrumentality is a concurrent conflict. The Committee notes but does not reach RPC 1.8(k), resolving the inquiry on RPC 1.7 alone.

Citations and references

Rules of Professional Conduct:

• MR 1.7 / NJ RPC 1.7(a)(1), 1.7(a)(2), 1.7(b)(2) (concurrent conflicts of interest; government-client consent limits)
• MR 1.8 / NJ RPC 1.8(k) (noted as a possible issue but not reached)

Court Rules:

• N.J. Court Rule 1:15-3(b) (municipal attorneys barred from representing private clients in their municipality's court)
• N.J. Court Rule 1:15-5(b)

Cases:

• Matter of ACPE Opinion 621, 128 N.J. 577 (1992) (representation adverse to a municipal entity; State is not a single unitary client)
• In re Advisory Com. on Prof. Ethics, 162 N.J. 497 (2000) (government-agency consent to conflicts)

Other opinions cited:

• ACPE Opinions 4, 18, 41, 52, 77, 79, 123, 137, 281, 292, 300, 374 (prior decisions identifying which local bodies are instrumentalities of the municipality)

See also

• ABA Formal Op. 97-405: Conflicts in Representing Government Entities
• ABA Formal Op. 97-409: Successive Government and Private Employment
• NJ ACPE Op. 699: Collaborative Law

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2005/acp697-1.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. Minor spacing artifacts from the mirror's text extraction have been normalized; the linked official source controls.

181 N.J.L.J. 536

August 8, 2005

14 N.J.L. 1563

August 8, 2005

Advisory Committee on Professional Ethics

Appointed by the Supreme Court of New Jersey

OPINION 697

Conflict of Interest: Concurrent Representation Involving Local Public Entities and Private Clients

This inquiry concerns the propriety of an attorney, whose law partner is either a township zoning board attorney or a housing authority attorney, representing private clients on traffic and disorderly persons matters in that township's municipal court. The inquirer presupposes that there would be no actual conflict in the course of this representation. We do not agree.

Soon after the creation of the Advisory Committee on Professional Ethics (ACPE) in 1962, we published ACPE Opinion 4, 86 N.J.L.J. 357 (1963). That inquiry concerned a law firm which represented several municipalities and contemplated representing private clients before the boards of adjustment in those municipalities. This situation was found to be improper. We reasoned that an attorney who represents a municipality or any of its agencies has as his client the entire municipality, which would include the board of adjustment. We then held that representation of a private client before the municipality's board of adjustment would be per se inconsistent with the then Canons of Professional Ethics #6, which expressly forbad acceptance of employment adversely affecting any interest of a client. Considering that the resulting conflict could not be waived by the public client, undertaking representation was impermissible.

A few months later, the Supreme Court issued a Notice to the Bar indicating that attorneys for municipalities or other public agencies may not represent a private client with interests adverse to those of the public entity. Notice to the Bar, 86 N.J.L.J. 713 (1963). The concept of being adverse to the public entity includes representation of a private client before any board, agency, commission, or other part of the municipality including its governing body. Matter of ACPE Opinion 621, 128 N.J. 577, 594-595 (1992). We recognize that the Court's discussion in Opinion 621 was grounded in part at least on the appearance of impropriety, a rule which has recently been abolished. Nevertheless, our findings discussed below as to who the client is when representing a municipal agency, leads us to the same conclusions.

It is against this backdrop that we examine the issue at hand. The broad question is whether the proposed representation would be inconsistent with the present Rules of Professional Conduct (RPC) or Rules of Court. RPC 1.7(a)(1) generally precludes an attorney from representing one client adverse to another. New Jersey Court Rule 1:15-3(b) more specifically prohibits municipal attorneys from representing private clients in their municipality's court. The question posed requires that we examine the relationship between the entity represented and the municipality to determine whether counsel for the entity in fact has the municipality as a client for purposes determining the existence of a conflict with the interests of the attorney's private client.

We have addressed this same basic question many times. Our prior decisions demonstrate that we have already dealt with this subject matter, for example, in connection with attorneys for a local housing authority, Opinion 79, 88 N.J.L.J. 460 (1965) and Opinion 18, 86 NJ.L.J. 734 (1963); a municipal environmental commission, Opinion 374, 100 N.J.L.J. 646 (1977); a local board of health, Opinion 300, 98 N.J.L.J. 126 (1975); a senior citizen housing authority, Opinion 281, 97 N.J.L.J. 362 (1974); an appointed school board, Opinion 137, 91 N.J.L.J. 797 (1968) and Opinion 77, 88 N.J.L.J. 453 (1965); a redevelopment agency, Opinion 123, 91 N.J.L.J. 97 (1968); and a municipal parking authority, Opinion 52, 87 N.J.L.J. 610 (1964). In each of these situations it was determined that the board, body, or authority at-issue was a subordinate instrumentality of their municipal government and that the proposed representation of private clients before or against any other municipal agency was improper.

Specifically, we held in Opinion 79 that the attorney for a municipal housing authority cannot appear before the municipal court, board of adjustment, planning board, township committee or other municipal bodies in the municipality which is served by the public housing authority. Our conclusion in Opinion 18, 86 N.J.L.J. 734 (1963) was the same, [a]n attorney representing a city housing authority has as his client the entire municipality.

Our views on this issue over the years have not changed. Nor, as stated above, does the elimination of the appearance of impropriety rule alter those views, since once the client is determined to be the municipality itself, there would be a concurrent conflict in representing a private client before or against one of its subordinate instrumentalities. RPC 1.7. Counsel representing an adjunct agency of a municipal government must make a choice as to whether they desire to represent the agency and thus preclude the practice by themselves and members of their firms before the various boards and bodies of the municipal government, or whether they believe it to be more advantageous to decline representation of the agency and represent private clients before the same public bodies. Opinion 374, 100 N.J.L.J. 646 (1977).

To aid practitioners in determining if a particular public body is an adjunct agency of a municipal government, the test is whether the agency is subject to the municipal government's budgetary, membership, or decision-making control. Opinion 292, 97 N.J.L.J. 809 (1974). If it is subject to any of these controls, the body is an instrumentality of that governing entity for purposes of the conflicts addressed in this opinion.

Bodies not subject to such control are autonomous and not considered to be part of the particular municipal government for purposes of conflict of interest analysis. We reached that conclusion with regard to a municipal fire district (municipal fire district more of an autonomous body because its commissioners were elected by ballot and its budget was determined by referendum), Opinion 292, supra; and an elected school board, Opinion 41, 87 N.J.L.J. 285 (1964) (elected school board was clearly autonomous and is not a part of the municipality in which it is located). The same would be true with respect to a municipal public defender since the public defender does not represent the municipality.

For the reasons stated above, an attorney, law firm, or office associates of that attorney or law firm, representing a municipal body subject to the governing entity's budgetary, membership, or decision-making control, is precluded from representing a private client before (or in a litigated matter against) the governing body, its executive, its legislature, any policy making official in an official capacity, or any office, department, division, bureau, board, commission, or agency, or other body subject to that governing entity's budgetary, membership, or decision making control, and specifically in this case, before the municipal court.

While a similar conclusion may be reached regarding county government (see opinions cited after footnote 2, infra), the reasoning of this opinion is not intended to extend to an attorney representing an agency of the State, because the State is so varied, so multifaceted, so extensive that to regard it as one unitary monolithic employer/client is unrealistic. Matter of ACPE Opinion 621, 128 N.J. 577, 597 (1992).

See, RPC 1.7(a)(2) and (b)(2), (1984). Comment to RPC 1.7, N.J.L.J., July 19, 1984, supp. at 3 (Appendix A-2), to preserve New Jersey's rule that a government agency cannot consent to representation if a conflict of interest exists. See also In re Advisory Com. on Prof. Ethics, 162 N.J. 497, 504 (2000). Although the Supreme Court Committee on the Rules of Professional Conduct (the Pollock Commission) recommended elimination of the prohibition of consent by these entities, the Supreme Court concluded that the prohibition, essentially a protective remnant of the appearance of impropriety rule, should be retained. (See, Supreme Court of New Jersey, Administrative Determinations in response to the Report and Recommendation of the Supreme Court Commission on the Rules of Professional Conduct, September 10, 2003, p. 20.)

ACPE decisions can be found on the Internet at www.lawlibrary.rutgers.edu/ethics/search.shtml.

We note that there is also a question concerning the applicability of RPC 1.8(k), but we need not reach it in this inquiry because there is a direct conflict prohibited by RPC 1.7.

See R.1:15-3(b).

See R.1:15-5(b).