93 N.J.L.J. 132
February 26, 1970
Conflict of Interests
Municipal Attorney -
Representing Municipal Official
This Committee has been asked for its opinion as to whether it
is ethical for a municipal attorney to appear with a municipal
official who has been subpoenaed to testify before the State
Commission on Investigations on matters involving the municipality.
In addition to this question, the inquirer wishes to know whether
it makes any difference that the official has indicated he intends to testify fully and not to invoke any constitutional privileges. In either event, he asks whether the municipality may pay his bill.
The attorney for the municipality represents the whole municipality. In so doing he also represents individual officials of the municipality in the performance of their official duties. Accordingly, the municipal attorney is performing one of the duties for which he is employed when he represents a municipal official on municipal matters.
The occasion may arise, however, when the official's actions or testimony indicate that he is not performing his duties on behalf of the municipality or that his individual interests or actions run contrary to the interests of the municipality. In that event the attorney must withdraw from the representation of the official who should seek separate counsel. To avoid difficulties from the start, if it should appear to the attorney that the official may not be willing to testify fully at the hearing or may invoke constitutional privileges, he should be advised to retain his own attorney before the hearing starts. If a conflict develops during the course of the hearing, he should not continue to represent the official but should endeavor to have the hearing adjourned until the official can obtain separate counsel. Since the attorney represents the municipality, there appears to be no reason why it cannot compensate him for representation of the official in the performance of his duties on behalf of the municipality.