Can an assistant county counsel also serve as a member of the governing council of a municipality in the same county?

Plain-English summary

Opinion 706 addresses whether the elimination of the appearance-of-impropriety provision of former RPC 1.7(c)(2) now permits an assistant county counsel to serve as a member of the governing body of a municipality within the same county. Under the Committee's Opinion 530 (1984), such dual office holding was prohibited, and the inquirer argued that because Opinion 530 rested on the appearance of impropriety, the bar no longer applies.

The Committee explains that Opinion 530 relied on the Supreme Court's decision in In re Opinion No. 415, 81 N.J. 318 (1979), which held that lawyers in the same firm cannot serve as county counsel and as municipal attorney for a town in the same county. Although the Court there spoke in terms of appearance of impropriety, it also catalogued the many situations in which a county and one of its constituent municipalities can transact business together or become adversaries (public transportation, recreational facilities, public health, flood control, sewage and drainage, road projects, purchasing, and the sale of property). The opinion notes the volume of such transactional and adversarial contacts has only grown since 1979.

Even with the appearance-of-impropriety provision gone, the Committee holds that the Rules continue to limit lawyers who represent public entities. RPC 1.7(a)(2) bars representation where there is a significant risk it will be materially limited by responsibilities to a third person, and a public entity cannot consent to a conflict under RPC 1.7(b)(1). The new RPC 1.8(k) bars a lawyer employed by a public entity from undertaking another representation that presents a substantial risk to independent, diligent, and competent representation of either client.

Because the inquirer did not supply enough detail to declare a per se ban, the Committee declined to do so on the facts, while observing that the dual role is likely to produce divided loyalty and recurring challenges to objectivity. It identified factors that can reduce that probability (the structure of the county counsel's office, the difference between county counsel and an assistant, full-time versus part-time status, the relative size of the municipality, and the council member's actual duties). The Committee added that, while there can be no bright-line frequency standard, multiple recusals or withdrawals annually presumptively would not well serve the public interest, and in some circumstances RPC 1.8(k) may require the lawyer to refrain from holding both positions.

In practice

The opinion holds that, under RPC 1.7(a)(2) and RPC 1.8(k) as they stood at the time, an assistant county counsel who also serves on a municipal council in the same county is not subject to an automatic bar after the 2004 removal of the appearance-of-impropriety standard, but must assess the actual risk of materially limited or substantially impaired representation given the specific duties of each role. Per the opinion, the analysis turns on whether divided loyalty would surface on a recurring basis, and the Committee states that multiple recusals or withdrawals annually presumptively would not serve the public interest and may, in some circumstances, require declining one position. Because this opinion predates the most recent five years, verify the current Rules of Professional Conduct before relying on the specific rule text it describes.

Common questions

Q: Did eliminating the appearance-of-impropriety rule clear the way to hold both offices?

A: Not by itself. The opinion explains that even without that provision, RPC 1.7(a)(2) and the new RPC 1.8(k) continue to limit lawyers representing public entities, so the dual role still requires a conflicts analysis.

Q: Why is serving a county and a municipality in the same county treated as risky?

A: Per the opinion, counties and their constituent municipalities frequently transact business and litigate against each other across many areas, creating numerous points at which the lawyer's obligations to each could clash.

Q: What factors affect whether the dual role is permissible?

A: The opinion lists the structure of the county counsel's office, whether the lawyer is county counsel or an assistant, full-time versus part-time status, the municipality's size relative to the county, its form of government, and the council member's actual responsibilities.

Q: How often can conflicts arise before the lawyer must give up one position?

A: The opinion declines to set a bright-line standard but states that multiple recusals or withdrawals annually presumptively would not well serve the public interest, and assessing that frequency is part of the required RPC 1.8(k) analysis.

Background and rules framework

The opinion interprets RPC 1.7(a)(2) (significant risk that a representation is materially limited by responsibilities to a third person), RPC 1.7(b)(1) (a public entity cannot consent to a conflicted representation), and RPC 1.8(k) (a lawyer employed by a public entity may not undertake a representation that presents a substantial risk to independent and competent representation), the New Jersey analogs to Model Rules 1.7 and 1.8. RPC 1.8(k) is described as a new section with roots in the prior appearance-of-impropriety doctrine, former RPC 1.7(c)(2), which was eliminated in the 2004 revisions.

Citations and references

Rules of Professional Conduct:

• MR 1.7 / NJ RPC 1.7(a)(2) (material limitation by responsibilities to a third person)
• NJ RPC 1.7(b)(1) (public entity cannot consent to a conflict)
• MR 1.8 / NJ RPC 1.8(k) (lawyer employed by a public entity; substantial-risk limit)
• Former NJ RPC 1.7(c)(2) (appearance of impropriety, eliminated in the 2004 revisions)

Cases:

• In re Opinion No. 415, 81 N.J. 318 (1979) (firm cannot serve as county counsel and municipal attorney in same county)
• McDonough v. Roach, 35 N.J. 153 (1961) (clash of obligations among units of government)

Other opinions cited:

• ACPE Opinion 530, 113 N.J.L.J. 400 (1984): assistant county counsel cannot serve as mayor of a municipality within that county

See also

• NJ ACPE Op. 707: Board of Ed and Town Attorney
• NJ ACPE Op. 726: Government Lawyer Conflicts
• CA Formal Op. 2001-156: City Attorney Conflicts Among Constituents

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2006/acp706-1.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. Dropped spaces around a citation and a trailing page-number artifact have been corrected; the linked official source controls.

184 N.J.L.J. 1183

184 N.J.L.J. 1184

June 26, 2006

15 N.J.L. 1413

July 3, 2006

Advisory Committee on Professional Ethics

Appointed by the Supreme Court of New Jersey

Opinion 706

Advisory Committee on Professional Ethics

Conflict of Interest: Concurrently Serving as Assistant County Counsel

And Council Member in Municipality in Same County

An inquirer asks whether the elimination of the appearance of impropriety provision of former RPC 1.7(c)(2) permits an assistant county counsel to serve as a council member in a municipality in the same county. Such dual office holding clearly would have been prohibited under our Opinion 530, 113 N.J.L.J. 400 (1984) (an assistant county counsel cannot serve as mayor of a municipality within that county). The inquirer takes the position that, since that opinion relied upon the appearance of impropriety, its prohibition against holding both offices no longer applies.

This Committee's Opinion 530 relies on the Supreme Court opinion in In re Opinion No. 415, 81 N.J. 318 (1979), which held that lawyers in the same firm cannot serve as county counsel and municipal attorney for a town in the same county. While the Court in that case clearly spoke in terms of the appearance of impropriety, Justice Schreiber, writing for the Court, took pains to detail the numerous situations in which the interests of a county and one of its constituent municipalities might conflict. 81 N.J. at 325-26. The Court noted that counties and municipalities might contract or otherwise transact business together in connection with public transportation, operation of recreational facilities, public health services, alleviation of flood conditions, public improvements, sewage disposal, drainage projects, road projects, purchase of materials and supplies, and the sale of county or municipal property. The Court also cited numerous cases involving counties and their constituent municipalities as adversaries.

Quoting from McDonough v. Roach, 35 N.J. 153, 159 (1961), Justice Schreiber concluded: The assignments of various functions to county and municipal governments 'invite a clash of the obligations each unit of government owes to its respective citizens.' 81 N.J. at 325. Obviously, the sheer numbers of transactional areas and adversarial cases have increased significantly in the years since In re Opinion No. 415 was handed down.

Even though the Supreme Court has eliminated the appearance of impropriety provision, the Rules of Professional Conduct continue to impose limitations on attorneys who represent public entities. RPC 1.7 frames the general conflict rule:

(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:

(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client, or a third person or by a personal interest of the lawyer.

RPC 1.7(a)(2) conflicts may be cured by informed consent, but a public entity cannot consent to representation in a conflict situation. RPC 1.7(b)(1).

An entirely new section, RPC 1.8(k), with roots in the prior appearance of impropriety doctrine, provides:

(k) A lawyer employed by a public entity, either as a lawyer or in some other role, shall not undertake the representation of another client if the representation presents a substantial risk that the lawyer's responsibilities to the public entity would limit the lawyer's ability to provide independent advice or diligent and competent representation to either the public entity or the client.

An attorney who represents a county and concurrently seeks to be a member of a municipal governing body in the same county must assess whether there is a substantial risk that the attorney's responsibilities to the municipality would limit the attorney's ability to provide independent advice or diligent and competent representation to the county. RPC 1.8(k). The attorney must also assess whether there is a significant risk that the representation of the county will be materially limited by the attorney's responsibilities to the municipality. RPC 1.7(a)(2).

In the capacity of municipal council member, the attorney's exclusive obligation is to further the interests of the municipality, while the exclusive obligation of the office of the county counsel is to represent the interests of the county. There are numerous intersecting points at which there may be a clash of the obligations each unit of government owes to its respective citizens. In re Opinion No. 415, supra, 81 N.J. at 325. Actual conflicts will arise in matters pertaining to pending litigation and contracts involving police, fire, transportation, recreational facilities, health services, road improvements, sewerage and garbage disposal, sale of real estate, construction and operation of public buildings, and myriad administrative, financial, and tax matters. The list is not exhaustive; actual conflicts may arise in other contexts.

Certain factors may diminish the probability that recurring actual conflicts will arise. The structural organization of the county counsel's office, distinctions that may exist between the position and responsibilities of county counsel and that of an assistant county counsel, the full-time or part-time status of assistant county counsel, the municipality's geographical and population size as compared to that of the county, the municipality's form of government and structural organization, and the job responsibilities of the municipal council member are relevant. For example, a part-time assistant county counsel who has limited interaction with county counsel or limited responsibility relating to the business of the county may be able to avoid providing legal advice to the county on issues affecting the pertinent municipality.

The ultimate questions are whether there is a significant risk that the representation of the county will be materially limited by responsibilities to the municipality, RPC 1.7(a)(2), and whether, given the actual job duties as assistant county counsel and the actual obligations as a member of the municipal council, there is a substantial risk that an attorney's responsibilities to the municipality would limit her or his ability to provide independent advice or diligent and competent representation to the county, RPC 1.8(k). The attorney must fully and fairly consider the effect of divided loyalty and recurring challenges to objectivity and independence of judgment.

The inquirer does not provide sufficient details on the two positions or the factors described above to permit us to determine whether a per se ban under RPC 1.8(k) is appropriate in this case. We observe, however, that an attorney representing a county while concurrently serving as a member of a municipal governing body in the same county is likely to experience divided loyalty and challenges to his or her objectivity and independence of judgment on a recurring basis. The contexts in which this impairment will surface may not be readily foreseeable, and recusal on a case-by-case basis may not fairly serve the interests of either the municipality or the county, especially if it occurs with any frequency. Assessing this frequency, and consequent harm to the public interest, is part of the analysis required of the attorney under RPC 1.8(k), and in some circumstances may require the attorney to refrain from holding both positions. While there cannot be a bright-line frequency standard, we are of the opinion that multiple recusals or withdrawals annually presumptively would not well serve the public interest.