93 N.J.L.J. 132
February 26, 1970
OPINION 174
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.