Rutgers School of Law, OAL case ACPE187

93 N.J.L.J. 649
September 10, 1970

ADVISORY COMMITTEE ON PROFESSIONAL ETHICS

Appointed by the New Jersey Supreme Court

OPINION 187

Conflict of Interest
Municipal Attorney
Conflict Between Mayor and Council

    Inquiry has been made by an assistant township counsel of a municipality that is organized under the Mayor-Council Plan of the
Faulkner Act. The township has a legal department which is appointed by the mayor with the advice and consent of the council. The legal department is responsible for the representation of the mayor and the members of the governing body individually in litigation or controversies arising out of or pertaining to the township. The legal department, we are also told, renders advisory service to both the mayor and the council.
    We are further advised that the mayor of the township desired to have a master plan study of the water needs of the township, and he solicited proposals for the same from at least two consulting engineering firms. Subsequently, the mayor presented a resolution to the council seeking authorization for hiring a water consultant
but leaving the name of the water consultant open, thereby enabling the mayor to choose the consultant independently. The resolution was carried to the next council meeting and subsequently amended so that it included the name of the particular consulting engineer. The mayor objected to the council's action and then refused to sign a contract for the hiring of said consulting services unless he could choose the consultant.
    The facts indicate that the mayor continues to refuse to sign the contract for the hiring of the water consultant notwithstanding the council's subsequent memorandum directing him to sign the same. At a later meeting of the council the governing body requested advice regarding the legality of the mayor's action or inaction. The request by the council was ambiguous, we are told, as to whether or not it wanted the township counsel to purchase court action, but during informal discussion at the meeting certain councilmen suggested certain remedies be pursued to force the mayor to sign or otherwise have the contract executed.
    At a special meeting called thereafter, the applicant (the assistant township counsel) submitted a memorandum to the council (said memorandum being attached to his inquiry to this Committee), wherein he stated that he felt that the legal department of which he was a member faced a conflict of interest in the dispute between the mayor and council and that neither he nor any other member of the legal department could ethically represent either the mayor or the council in litigation or in an attempt to secure affirmative relief. The inquiring attorney then goes on to say that the issues involved are:
    (1)    Whether a municipal attorney may represent either the mayor or governing body in litigation involving conflicting interests of the same.

    (2)    Whether a municipal attorney may render a legal opinion or take a position relative to a controversy between the mayor and the governing body prior to litigation but after an actual controversy has arisen.

    As to the first inquiry, the attorney then goes on to tell us that he has concluded that neither the legal department nor he could represent either the mayor or the council or bring a declaratory action in this dispute based upon the reasoning set forth in his memorandum to the president of the council which he submitted, and he also, is of the opinion that when a controversy reaches an impasse the municipal attorney can be questioned as to his objectivity, and consequently rendering an opinion would also be improper, accordingly, he requests an opinion as to the rights and obligations of the mayor and the council with respect to such a controversy and the position which he and the legal department should assume.
    At the outset it must be said that we are mindful that we have written various opinions directly and indirectly involving conflict of interest problems and we have previously pointed out that, where the public interest is involved and a conflict arises, it is improper for the municipal attorney to represent either side.
    In N.J. Advisory Committee on Professional Ethics, Opinion 4, 86 N.J.L.J. 357 (1963), we said:
            While an attorney representing two private clients may properly act in exceptional cases with the consent of each, even though a possibility of conflicting interests exists, consent is generally unavailable where public interest is involved. See Drinker, Legal Ethics 120 (1953).

    The Legislature pointed out some time ago that the mayor is the chief executive officer of the municipality (N.J.S. 40:69A-39) and is vested with the powers and duties provided by law and by ordinance (N.J.S. 40:69A-40). He has that authority which is given to him by law or by ordinance (idem) and, obviously, if he fails to perform in that respect there are remedies available to the municipality to compel him and all others holding elective or appointive offices to perform such duties as may be required by law. It is elementary that all municipalities have the power and authority to appoint municipal attorneys and even to establish a legal department to guide them legally as to their activities, but only as it properly affects their duties as municipal officials.     In the inquiry before us, counsel tells us that having participated in discussions pertaining to possible remedies that ought to be pursued to compel the mayor to sign or otherwise have the contract under discussion executed, it was well within his authority and in fact his duty to submit the advice or, as he did in this instance, his memorandum, advising that the legal department truly had been confronted with a conflict of interest in the dispute between the mayor and council and that neither it nor any of its members could or should represent in litigation either the mayor or the council or attempt to secure affirmative relief for or against either of them. We find nothing unethical in counsel's having taken that position but, on the contrary, feel that what was done should have been done in view of the circumstances, insofar as that part of the inquiry was concerned.
    May a municipal attorney represent the mayor or council, whether they are actually in litigation or not, involving conflicting interests between them, or render an opinion to the municipal authorities relative to the controversy? We are of the opinion that he certainly can give a legal opinion as to the law as he sees it, and in fact we are also of the opinion that it is his duty to do so. In many of the smaller municipalities the position of the attorney is a very positive one and his advice is always sought by all sides, specially when there is a controversy. However, it has always been our position that when that comes about counsel must step out of the controversy entirely and leave the litigants to their individual choices. As attorney for the municipality, he represents the entire municipality and while the temptation to get into an interesting, important or profitable case is always alluring, and a lawyer is very prone many times to rationalize with himself in the belief that he will be able to steer safely between the two, it does not usually happen that way. He should not only avoid incidents where a conflict of interest is evident, but those in which a conflict of interest is likely to develop. See Drinker, Legal Ethics 105 (1953).
    We have mentioned in many of our opinions that to maintain proper confidence in the bar, it is necessary not only to avoid actual wrongdoing but even the appearance of wrongdoing. Obviously, people in this community would certainly come to the conclusion that it would be wrong for the present attorney to take sides in this controversy. N.Y. County Lawyers Ass'n., Committee on Professional Ethics, Opinion 202 (1922).
    We also must be confronted with the obvious conclusion that if the attorney represented either side, the other would certainly feel that he had been wronged, if confronted by action against him later by the same attorney whom he had previously employed as municipal attorney. N.J. Advisory Committee on Professional Ethics, Opinion 158. 92 N.J.L.J. 641 (1969).
    We recently discussed indirect activity on the part of a municipal attorney. See N.J. Advisory Committee on Professional Ethics Opinion 174, 93 N.J.L.J. 132 (1970). While that inquiry was not directly in point, in that opinion we stated:
            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 actions are contrary to the interest of the municipality.

We went on to say that "[I]n that event the attorney must withdraw from the representation of the official" and further stated therein that the municipal official, under those facts, should obtain separate counsel.
    We are of the opinion that upon the facts presented in this inquiry, a municipal attorney may not represent either the mayor or the governing body in litigation involving the conflicting interests stated and that the written memorandum which counsel previously filed with the mayor and council advising that a conflict of interests did exist and that he could not represent either side in the litigation or in the attempt to secure affirmative relief is correct.
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