Rutgers School of Law, OAL case ACPE138

91 N.J.L.J. 805
December 12, 1968

ADVISORY COMMITTEE ON PROFESSIONAL ETHICS

Appointed by the New Jersey Supreme Court

OPINION 138

Conflict of Interest - Setting Up Intermunicipal Authority
Prosecuting in One Municipality
Practicing in Other Municipalities

    A municipal attorney advises that six municipalities including the one he represents plan to form a joint agency or authority to deal with a problem common to all. The attorney's services have been requested to assist in the preparation of by-laws and other legal documents necessary to effect the organization of the proposed authority and in completing and processing an application for a federal grant that may be available for the authority. The enforcement of ordinances adopted pursuant to the authority's program may require prosecution of violators within each constituent municipality by a local attorney appointed for that purpose. It is contemplated that the local health agency would file the initial complaint in the event of an alleged violation, but investigation and testimony would be made and given by employees of the intermunicipal agency.
    The attorney raises two questions in the premises:
    1. Would his services in the formation of the intermunicipal agency, as distinct from its operation, ethically preclude him from appearing before the municipal courts and other agencies of the constituent municipalities other than his own?

    2. Would there be any impropriety in an attorney appointed to
prosecute violators of ordinances adopted pursuant to the intermunicipal agency's program within one municipality appearing on behalf of private clients in the municipal courts or local agencies of the other constituent municipalities?
    As to the first question, the services to be rendered in the mere formation of the intermunicipal agency involve no apparent conflict of interest with any representation of clients before municipal judges or other local agencies of the constituent municipalities other than the one in which he serves as municipal attorney. Our Opinion 98, 89 N.J.L.J. 641 (1966), is readily distinguishable on the facts and is not deemed applicable here. There the inquiry involved the propriety of an attorney serving as counsel for an operating intermunicipal authority appearing before the magistrates and agencies of the two constituent municipalities. It was our opinion that the concurrent service as counsel for the intermunicipal authority and appearance before agencies of either member municipality would involve a conflict of interest. It is clear in the instant inquiry that the attorney's relationship with the intermunicipal authority will cease once that entity is established. His statement indicates that he will not serve the intermunicipal agency once it begins its operations and that he will not concurrently represent the operating agency and private clients before judges or bureaus of any of the constituent municipalities.
    It is our opinion that under the facts submitted the attorney may ethically assist in the organization of the intermunicipal agency without any restrictions on his practice in municipalities other than his own.
    As to the second question, the sole fact that an attorney represents a municipality in the prosecution of violators of ordinances passed pursuant to a program of the joint urination of several municipalities formed to combat a common problem would not ordinarily suggest a conflict of interest in his representation of private clients before the local courts and agencies of the other constituent municipalities. However, here the local prosecuting attorney would be assisted by the employees of the intermunicipal authority who would conduct investigations and testify in violation proceedings. Collaborating with the authority's personnel in one municipality and being supposedly in opposition to the same personnel in any of the five other municipalities raise the same question of impropriety and appearance of impropriety that we have on many occasions stated should be avoided. Therefore, it is our opinion that the attorney appointed solely to prosecute violations of ordinances adopted pursuant to the authority's program would be enmeshed in a conflict of interest situation were he to represent private clients charged with the violation of the joint agency's ordinances in other constituent municipalities.
    However, no such disqualifying common ground can be found with respect to other appearances before the local courts and agencies
of the other municipalities. Therefore, in our opinions there would be no impropriety in the attorney's representing his clients before the local judge and municipal agencies in the other municipalities, with the exception noted above.

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