Does serving as attorney for an intermunicipal sewerage authority bar the lawyer (and his firm) from appearing for private clients before the courts and agencies of the two member municipalities?

Plain-English summary

A member of the bar had for many years served as attorney for an intermunicipal sewerage authority created by parallel ordinances of two municipalities, whose members were appointed to five-year terms by resolution of the respective governing bodies and whose functions related solely to the treatment and disposal of sewage from residents of the two municipalities. In light of recent opinions on the conflict of interest where an attorney for a municipal agency (or a member of his firm) appears as counsel for private litigants before the municipal court or other agencies of the same municipality, the inquirer asked whether the authority's peculiar and limited scope of operation would preclude him or his firm from appearing before the magistrate's courts or other agencies of the two municipalities the authority served.

The Committee was of the opinion that, on the facts presented, the inquirer's representation of the intermunicipal agency would ethically bar appearance by him or his partners before any magistrate or agency of either municipality. Neither the so-called peculiar and limited scope of operation nor the intermunicipal aspect of the agency offered any valid basis for distinguishing the situation from similar inquiries involving the agencies of a single municipality. The Committee applied the basic principle that the appearance of a complete absence of improper influence is as important as its actual absence, citing its Opinion 52 and the opinions cited there.

Currency note

This opinion was issued in October 1966, before New Jersey's September 13, 1971 adoption of the Disciplinary Rules (Code of Professional Responsibility), and well before the 1984 Rules of Professional Conduct and all later revisions. It applied the appearance-of-impropriety principle of the Canons, drawing on the Committee's Opinion 52 and related opinions. The subjects are now treated under RPC 1.7 (concurrent conflicts of interest) and RPC 1.10 (imputation of conflicts). Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific requirement mentioned here.

Common questions

Q: Can the authority's attorney appear for private clients before the member towns' courts?

A: No. The Committee held that representing the intermunicipal sewerage authority barred the attorney and his partners from appearing before any magistrate or agency of either municipality.

Q: Did the agency's narrow, sewage-only function make a difference?

A: No. The Committee said neither the peculiar and limited scope of operation nor the intermunicipal character provided a valid basis to distinguish the situation from single-municipality conflicts.

Q: Did the bar reach the rest of the firm?

A: Yes. The Committee expressly extended the bar to the inquirer's partners.

Background and rules framework

The opinion applies the appearance-of-impropriety principle of the Canons of Professional Ethics (as developed in the Committee's Opinion 52) to an attorney serving an intermunicipal public agency, extending the bar to his firm. In current New Jersey terms, the conflict maps to RPC 1.7 and the firm-wide reach to RPC 1.10.

Citations and references

Other authorities:

• Canons of Professional Ethics (appearance-of-impropriety principle)

Other opinions cited:

• NJ ACPE Opinion 52, 87 N.J.L.J. 610 (1964), and numerous opinions cited therein

See also

• NJ ACPE Op. 96: Attorney on a Municipal Reassessment Committee
• NJ ACPE Op. 117: Borough Attorney Advising the Planning Board

Source

• Landing page: https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp98-1.html

Original opinion text

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

89 N.J.L.J. 641
October 6, 1966

OPINION 98

Intermunicipal Sewerage Attorney

A member of the bar advises that for many years he has served as attorney for an intermunicipal sewerage authority created by parallel ordinances of two municipalities. He further states that "The members of the authority from each municipality are appointed to five-year terms by resolution of the respective governing bodies." The agency's functions are related solely to the treatment and disposal of sewage received from residents of the two municipalities.

In view of recent opinions of this Committee with respect to the conflict of interest involved where an attorney for a municipal agency (or a member of his firm) appears as counsel for private litigants before the municipal court or other agencies of the same municipality, the inquirer questions whether the "peculiar and limited scope of operation of the Authority" would preclude him or the members of his firm from appearing before the magistrate's courts or other agencies of the two municipalities served by the authority.

It is our opinion that on the facts presented the inquirer's representation of the intermunicipal agency would ethically bar appearance by him or his partners before any magistrate or agency of either municipality. Neither the so-called "peculiar and limited scope of operation" nor the intermunicipal aspect of the agency offers any valid basis for distinguishing the situation presented in this inquiry from those in similar inquiries involving the various agencies of just one municipality. Applicable here is the basic principle that appearance of complete absence of improper influence is as important as the actual absence thereof. See Opinion 52 of this Committee, 87 N.J.L.J. 610 (1964), and numerous opinions cited therein.