94 N.J.L.J. 445
May 27, 1971
Conflict of Interest
County Counsel Representing Private
Clients Before Municipal Bodies
In N.J.S.A. 30:4-23 "County Counsel" is defined as follows:
County counsel includes the chief legal officer or
adviser of the board of chosen freeholders of any county
in this State or his duly authorized representative.
Such officer has no jurisdiction or authority to enforce the criminal laws of the State; that power is vested in the county prosecutor, whose office is separate and apart from the office of
county counsel. It is the duty of county counsel to advise the board of freeholders on all matters of interest to it.
In N.J. Advisory Committee on Professional Ethics, Opinion 168, 93 N.J.L.J. 7 (1970), we held that an attorney for the county planning board could not represent persons accused of crime within the county, because he is, in effect, representing all the people of the county, and the public would suspect that the attorney would
receive preferential treatment for his client and was using the influence of his public office for private gain.
In Opinion 106, 90 N.J.L.J. 97 (1967), which concerned among other things, the propriety of a county attorney representing private clients accused of crime in his county, we pointed out that the attorney's "conduct must be such as to prevent any inference arising that he is using his public office for private gain" and concluded it would be improper for him to represent such clients. In many opinions we have considered the area of conflict that arises when an attorney for a public body, board or agency, or an attorney member thereof, represents a private client under circumstances creating a suspicion that the attorney is using the influence of his public office in behalf of his client. We have consistently held that such representation was improper. In our Opinion 88, 89 N.J.L.J. 49 (1966), we said:
Running through all our opinions, in this area of conflict, is the prevailing theme that, where the public interest is involved, every situation which affords a chance for impropriety, however slight, should if possible, be avoided in order to eliminate public suspicion that an attorney in public office will use his position or influence in behalf of a client. And this is so whether he is the attorney for or a member of a public body, board or agency. In this respect the language of the A.B.A., Committee on Professional Ethics and Grievances, Opinion 49 (1931), is particularly appropriate. The committee said:
...If the Profession is to occupy that position in public esteem which will enable it to be of the greatest usefulness, it must avoid not only all evil, but must likewise avoid the appearance of evil.
With these ethical principles well established, we come face to face with the questions raised in the present inquiry. Is there a conflict of interest where a county counsel represents private clients in the situations set forth above?
With respect to the first question, we think there is a conflict and that a county counsel should not participate in such cases. Traffic matters involve a wide range of charges, some of minor and some of major importance. Certainly, notations involving drugs, drunkenness, death by auto, and other similar offenses, affect all the residents of the county and bear upon violations of the criminal laws of the State. Many violations of the disorderly persons act are criminal in nature, and result in a penalty upon conviction, even though they may have been downgraded from indictable offenses.
The principles set forth in our cited opinions, as well as the comments set forth herein, fully demonstrate that a county counsel
should not be involved in appearances on behalf of private clients before a municipal court on disorderly conduct or traffic matters.
With respect to the matters listed in paragraph 2, we believe there generally is no conflict and that county counsel should be permitted to represent private clients. However, this does not rule out the possibility of a conflict in a particular case. The county counsel has no control over the municipalities within the county and in no way represents any of them. They have their own attorneys to advise and represent them. It cannot be said that the county counsel, in representing all the people of the county in civil matters, represents them with respect to civil matters involving each particular municipally. It is different in criminal matters where persons are accused of indictable offense. The reasons were expressed in Opinion 106, supra.