Can a lawyer serve as a member of an elected board of education and as the municipal attorney in the same township at the same time?

Plain-English summary

Opinion 707 answers whether one attorney may contemporaneously serve as a member of an elected New Jersey board of education and as municipal attorney in the same township. On the facts submitted, the Committee concludes it does not create a conflict.

The Committee notes that its prior opinions on dual municipal/board-of-education roles have not always been consistent, shifting with changes in the Rules and case law. Earlier opinions that approved dual roles relied on the fact that an elected board of education operates independently of the municipal governing body, except for the municipality's limited role if the board's budget referendum fails. Opinions that disapproved (notably Opinion 464, reaffirmed in 1992) rested on the appearance-of-impropriety concept in former RPC 1.7(c), which was eliminated when the Rules of Professional Conduct were revised effective January 1, 2004.

With appearance of impropriety no longer a standard, the Committee finds no basis for a per se conflict in the circumstances presented. The only inherent overlap between the two entities is the municipality's obligation to address the board's budget if its referendum fails, and the board's essential autonomy was confirmed in Opinion 697. The remaining potential obstacles are RPC 1.7(a)(2) (significant risk that representation will be materially limited) and RPC 1.8(k) (substantial risk arising from a lawyer's duties to a public entity).

Finding nothing in the facts presented suggesting such a significant or substantial risk, the Committee concludes that the dual office holding is permissible, subject to recusal if an actual conflict arises.

In practice

The opinion holds that, under RPC 1.7(a)(2) and RPC 1.8(k) as they stood at the time, there is no per se conflict in concurrently serving as a member of an elected board of education and as municipal attorney in the same township, because the 2004 elimination of the appearance-of-impropriety standard removed the prior basis for a per se bar and an elected board of education is largely autonomous from the municipality. Per the opinion, the only inherent overlap is the municipality's role if the board's budget referendum fails, and an actual conflict in a specific matter would call for recusal. 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: Can I be both a board of education member and the township attorney?

A: On the facts presented, yes. The opinion finds no per se conflict after the 2004 elimination of the appearance-of-impropriety standard, and no significant or substantial risk under RPC 1.7(a)(2) or RPC 1.8(k).

Q: Why did older opinions sometimes bar this?

A: The opinion explains that earlier decisions like Opinion 464 (as reaffirmed in 1992) relied on the appearance-of-impropriety concept in former RPC 1.7(c), which was eliminated effective January 1, 2004.

Q: What overlap between the two roles still matters?

A: Per the opinion, the only inherent overlap is the municipality's obligation to deal with the board's budget if its referendum fails; an actual conflict in a specific matter would require recusal.

Background and rules framework

The opinion interprets RPC 1.7(a)(2) (significant risk that representation is materially limited by responsibilities to a third person or a personal interest) and RPC 1.8(k) (a lawyer employed by a public entity may not represent a client where there is a substantial risk to independent, diligent, and competent representation), the New Jersey analogs to Model Rules 1.7 and 1.8. It contrasts these with the former RPC 1.7(c) appearance-of-impropriety standard eliminated in the 2004 revisions.

Citations and references

Rules of Professional Conduct:

• MR 1.7 / NJ RPC 1.7(a)(2) (material limitation by third-person responsibilities or personal interest)
• MR 1.8 / NJ RPC 1.8(k) (lawyer employed by a public entity; substantial-risk limit)
• Former NJ RPC 1.7(c) (appearance of impropriety, eliminated effective January 1, 2004)

Cases:

• Bodkin v. Westwood, 52 N.J. Super. 416 (App. Div. 1958)

Other opinions cited:

• ACPE Opinions 44 (1964), 59 (1964), 39 (1964): early approvals of dual municipal/board roles
• ACPE Opinion 464 (1980) and Reconsideration of Opinion 464, 132 N.J.L.J. 522 (Nov. 2, 1992): disapproval based on appearance of impropriety
• ACPE Opinion 470 (1981): approval, later reversed
• ACPE Opinion 697, 181 N.J.L.J. 536 (Aug. 8, 2005): autonomy of an elected board of education

See also

• NJ ACPE Op. 726: Government Lawyer Conflicts
• NJ ACPE Op. 709: Police Officer as Defense Lawyer
• AL Ethics Op. 2005-01: City Attorney Conflict

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2006/acp707-1.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. A dropped accented character and a trailing page-number artifact have been restored; the linked official source controls.

184 N.J.L.J. 1183

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 707

Advisory Committee on Professional Ethics

Conflict of Interest: Serving as Member of Board of Education and as Municipal Attorney in Same Township

The Committee has been asked whether contemporaneously serving as a member of an elected New Jersey board of education and as municipal attorney in the same township constitutes a conflict of interest under the Rules of Professional Conduct. The Committee has concluded that on the facts submitted it does not.

The question of dual holding of such municipal and elected board of education offices by the same attorneys or their firms has been addressed by the Committee numerous times, and due in part to changes from time to time in the Rules and case law governing professional conduct, the published opinions have not always been consistent. In this regard we call attention to the following opinions of this Committee: Opinion 44, 87 N.J.L.J. 297 (May 14, 1964) (councilman and board of education attorneys in same firm permitted); Opinion 59, 87 N.J.L.J. 741 (Nov. 19, 1964) (acting as attorney for municipality and attorney for board of education in same town permitted); Opinion 39, 87 N.J.L.J. 191 (March 26, 1964) (borough attorney may advise board of education); Opinion 464, 106 N.J.L.J. 498 (Dec. 11, 1980) (counsel to board of education should not contemporaneously serve as a member of the borough council, based on the "appearance of impropriety"); Opinion 470, 107 N.J.L.J. 127 (Feb. 12, 1981) (same attorney may be attorney for board of education and township attorney - apparently reversing Opinion 464); Reconsideration of Opinion 464, Notice to the Bar, 132 N.J.L.J. 522 (Nov. 2, 1992) (clarifies that Opinion 470 is reversed and Opinion 464 is upheld).

Those opinions which approved the dual office holding relied on the fact that an elected board of education in its general operations is a body entirely independent of the governing body of the municipality except in the limited circumstances of the municipal obligation to deal with the board's budget if it fails to be approved by referendum. In such case, and in the case of an actual conflict, the attorney's recusal would be called for. See, e.g., Opinion 470, supra, and cf. Bodkin v. Westwood, 52 N.J. Super. 416, 425 (App. Div. 1958).

The decisions which did not permit the dual office holding, Opinion 464, supra, and the Committee's most recent determination on the subject, Reconsideration of Opinion 464, supra, relied essentially on the appearance of impropriety concept of the former RPC 1.7(c) which was eliminated by the adoption of Rules of Professional Conduct Revision, effective January 1, 2004.

Given that the appearance of impropriety is no longer a standard of conduct under the RPCs, the Committee is of the view that there is no longer a basis for a finding of a per se conflict in the dual office holding in the factual circumstances presented. The only inherent overlap in the responsibilities of the two entities is the municipality's obligation to deal with the board's budget when its budget referendum fails. In light of the essential autonomy of an elected board of education vis-a-vis the municipal government, an autonomy confirmed in a very recent decision of this Committee in Opinion 697, 181 N.J.L.J. 536, 14 N.J.L. 1563 (August 8, 2005) (currently on appeal to the New Jersey Supreme Court on other grounds), and in the absence of an actual conflict which would call for recusal, the only potential obstacle to such dual office holding are current RPCs 1.7(a)(2) and 1.8(k).

RPC 1.7(a) provides:

A current 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 1.8 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.

We find nothing in the facts presented that would suggest that such a significant or substantial risk exists so as to bar the holding of both positions by the inquiring attorney.