Can the same lawyer serve as municipal prosecutor and as planning board attorney in the same municipality?

Plain-English summary

The Committee was asked whether a lawyer may concurrently serve as municipal prosecutor and planning board attorney in the same borough. It held that there is no per se prohibition against serving in both positions, though the lawyer must consider case-by-case conflicts under RPC 1.8(k) and 1.7. The opinion supersedes Opinion 452 (1980) and Opinion 366 (1977), which had treated a municipal prosecutor like a municipal attorney for conflict purposes based on the appearance of impropriety and the "member of the municipal family" doctrine. That doctrine was removed from the Rules of Professional Conduct in 2004.

The Committee explained that the New Jersey Supreme Court, in In re Opinion No. 697 (2006), overturned the older precedent that an attorney representing any municipal agency represents the entire municipality. In its place, the Court set three tiers of per se conflict tied to the breadth of the attorney's official duties: an attorney who plenarily represents a municipal governing body is barred from representing private clients before that body and all its subsidiary boards, agencies, and courts; an attorney who plenarily represents a subsidiary agency is barred only as to that agency; and an attorney engaged in a limited, non-plenary scope may not represent a private client before or against the governing body but may appear before the municipality's boards, agencies, or municipal court.

Applying that framework, the Committee found that a municipal prosecutor practices in a limited, non-plenary scope: the prosecutor has authority only to prosecute cases in municipal court in the name of the municipality or the State and does not represent the municipality generally. The fact that the municipality appoints the prosecutor and sets the salary no longer creates a broad per se conflict. Because a limited-scope lawyer may represent private clients before subsidiary boards (other than the governing body), it follows that a municipal prosecutor may also serve as attorney for a subsidiary board such as a planning board, subject to case-by-case review under RPC 1.7(a)(2) and 1.8(k). The Committee noted that, by Court Rule, municipal prosecutors may not represent private clients in any municipal court in the county or in criminal matters in that county's Superior Court (R. 1:15-3(b)).

In practice

The opinion holds that, under the New Jersey rules as they stood at the time, a lawyer may concurrently serve as municipal prosecutor and as planning board attorney in the same municipality, because a municipal prosecutor is limited-scope counsel rather than a plenary municipal attorney. Per the opinion, the lawyer must still evaluate each matter for conflicts under RPC 1.7(a)(2) (material limitation) and RPC 1.8(k) (substantial risk to representation of the public entity), and a municipal prosecutor remains barred by Court Rule from representing private clients in any municipal court in the county or in criminal matters in that county's Superior Court.

Common questions

Q: Can one lawyer be both municipal prosecutor and planning board attorney in the same town?

A: Yes. The Committee found no per se bar, because a municipal prosecutor is limited-scope, not plenary, counsel; case-by-case conflicts under RPC 1.7 and 1.8(k) still apply.

Q: Why did the Committee overrule Opinions 452 and 366?

A: Those opinions treated a municipal prosecutor like a municipal attorney based on the appearance of impropriety and the "member of the municipal family" doctrine, which was removed from the Rules in 2004 and limited by In re Opinion 697 to plenary municipal counsel.

Q: What is the test now for these local-government dual roles?

A: The breadth and scope of the attorney's official duties. A plenary municipal attorney has the broadest restrictions; a limited-scope lawyer like a prosecutor may not represent private clients before or against the governing body but may serve subsidiary boards, subject to RPC 1.7 and 1.8(k).

Background and rules framework

The opinion applies RPC 1.7(a)(2) (a significant risk that the representation will be materially limited by responsibilities to another client or third person; cf. Model Rule 1.7(a)(2)) and RPC 1.8(k) (a lawyer employed by a municipality may not undertake a representation presenting a substantial risk to independent, diligent, competent representation of the municipality; New Jersey's public-lawyer provision). It is governed by the three-tier framework from In re Opinion No. 697 and Court Rule R. 1:15-3(b).

Citations and references

Rules of Professional Conduct:

• RPC 1.7(a)(2) (concurrent conflict; material limitation); cf. Model Rule 1.7(a)(2)
• RPC 1.8(k) (lawyer employed by a public entity); New Jersey provision

Court Rules:

• R. 1:15-3(b) (limits on a municipal prosecutor's private practice)

Cases:

• In re Supreme Court Advisory Committee on Professional Ethics Opinion No. 697, 188 N.J. 549 (2006), three-tier framework for local-government conflicts

Other opinions cited:

• ACPE Opinion 452 (1980) and ACPE Opinion 366 (1977): superseded by this opinion

See also

• NJ ACPE Op. 697: Municipal Agency Counsel and Private-Client Conflicts
• NJ ACPE Op. 662: Municipal Attorney Serving as Municipal Prosecutor
• NJ ACPE Op. 722: County Counsel Serving as Mayor (Per Se Conflict)

Source

• Landing page: https://www.njcourts.gov/sites/default/files/notices/2019/07/n190806b.pdf
• Original PDF: https://www.njcourts.gov/sites/default/files/notices/2019/07/n190806b.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Issued by ACPE June 25, 2019

ADVISORY COMMITTEE ON PROFESSIONAL ETHICS

Appointed by the Supreme Court of New Jersey

ACPE OPINION 736

Lawyer May Concurrently Serve as Municipal Prosecutor and Planning Board Attorney in Same Municipality; Superseding Opinions 452 and 366

The Advisory Committee on Professional Ethics received an inquiry asking whether a lawyer may concurrently serve as municipal prosecutor and planning board attorney in the same borough. The Committee decided that there is no per se prohibition against serving in both positions, though the lawyer must consider case-by-case conflicts under Rules of Professional Conduct 1.8(k) and 1.7.

This Opinion supersedes Opinion 452 (1980) and Opinion 366 (1977). In Opinion 366, the Committee reasoned that a municipal prosecutor should be treated the same, for conflict of interest purposes, as a municipal attorney because the lawyer "represents the municipality in prosecutorial functions." In Opinion 452, the Committee found that a municipal prosecutor should be treated the same, for conflict of interest purposes, as a municipal attorney because the prosecutor "is a creature of the municipal government body which makes the appointment and determines the salary." Both Opinions rely on the appearance of impropriety and the related "member of the municipal family" doctrine. The appearance of impropriety doctrine, however, was removed from the Rules of Professional Conduct in 2004.

When considering conflicts of interest in the local government setting, the Committee previously focused on the municipality's budgetary and decision-making control over the agency represented by the lawyer. This led to the precedent that an attorney who represents a municipality or any of its agencies has as his or her client the entire municipality. Therefore, a lawyer could not represent one part of the municipal client while concurrently representing a private client before or against another part of the municipality.

The New Jersey Supreme Court, in 2006, overturned this precedent. In re Supreme Court Advisory Committee on Professional Ethics Opinion No. 697, 188 N.J. 549, 564-66 (2006). In its stead, the Court set forth three tiers of per se conflicts. It held that an attorney who "plenarily represents a municipal governing body" is "barred from representing private clients before that governmental entity's governing body and all of its subsidiary boards and agencies, including its courts." Id. at 569. In contrast, an attorney who "plenarily represents an agency subsidiary to the governmental entity's governing body" is "barred from representing private clients before that subsidiary agency only." Ibid. Lastly, "if the scope of an attorney's engagement by a governmental entity is limited and not plenary," the attorney may not represent a private client before or against the governing body but may represent a private client before the boards, agencies, or municipal court of the municipality. Id. at 567-69. Of course, an attorney who represents a subsidiary agency, or the municipality in a limited scope, must still comply with the provisions of Rules of Professional Conduct 1.8(k) and 1.7. Id. at 566-68.

The Court thus differentiated between municipal attorneys, attorneys for subsidiary boards and agencies, and attorneys serving the municipality in a limited scope, when determining whether the attorney has a conflict of interest. The relevant factor in this analysis is the breadth and scope of the attorney's official duties. The municipal attorney, whose duties span the entire municipality, has the broadest restrictions on outside practice. The attorney for a subsidiary board or agency, whose duties extend only to matters before or against that board or agency, is subject to practice restrictions only with regard to that board or agency. The attorney who is retained by the municipality in a limited scope, such as bond counsel, tax counsel, or the like, has closely-defined duties in a specific legal area and is subject to the general restriction of not representing a private client before or against the governmental body itself.

The Committee hereby finds that a municipal prosecutor practices in a manner that is limited in scope and not plenary. The municipal prosecutor has authority only to prosecute cases in municipal court in the name of the municipality or the State; the prosecutor does not represent the municipality generally ("plenarily"). In contrast, the duties of the municipal attorney encompass all matters affecting the municipality. Municipal prosecutors and other limited-scope counsel are retained by the municipality and the municipality sets the salary but, as discussed above, this fact no longer results in a finding of a broad, per se conflict.

The Court, in Opinion 697, decided that while limited-scope lawyers may not represent a private client before or against the governing body, they have no other per se prohibitions on their practice. Id. at 569. Accordingly, a municipal prosecutor is not flatly prohibited from appearing before boards or agencies of that municipality on behalf of private clients, but is precluded from representing a private party in a matter before or against the governing body itself. Further, by Court Rule, municipal prosecutors may not represent private clients in any municipal court in the county or in criminal matters in that county's Superior Court. R. 1:15-3(b).

If a municipal prosecutor may represent private clients in matters before an agency subsidiary to the municipality's governing body, it follows that the municipal prosecutor may also concurrently serve as attorney for a subsidiary board or agency, subject to case-by-case restrictions under the Rules of Professional Conduct. Specifically, Rule of Professional Conduct 1.7(a)(2) provides that a lawyer may not represent a client if "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." In addition, lawyers should consider Rule of Professional Conduct 1.8(k), which provides that a lawyer who is employed by a municipality shall not undertake representation of a client if there is a substantial risk that the lawyer's responsibilities to the municipality would limit the lawyer's ability to provide independent advice or diligent and competent representation to the client.

As the Court noted in Opinion 697, the "member of the municipal family" doctrine, which was grounded in principles of appearance of impropriety, now applies only to attorneys who plenarily represent the municipality. Id. at 564-65. Attorneys providing legal services to municipalities in lesser roles are no longer subject to broad, per se restrictions on their practice. Accordingly, subject to case-by-case conflicts of interest, an attorney who serves as counsel to a municipal planning board may concurrently serve as municipal prosecutor in the same municipality.