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                                         95 N.J.L.J. 81
                                        February 3, 1972

ADVISORY COMMITTEE ON PROFESSIONAL ETHICS

Appointed by the New Jersey Supreme Court


OPINION 229

Conflict of Interest
County Counsel's Private Practice

    An inquiry has been made containing the following questions.

Questions

    1. The county sheriff does not have a separate legal adviser and the inquirer, as county counsel, is called upon to advise the sheriff and has represented the sheriff in a litigation against him in his official capacity.
        (a)    Is the inquirer precluded from practicing in the county court or any other court?

        (b)    If the sheriff had his own attorney other than the county counsel would the "official county family" relationship be such as to preclude the county counsel from practicing in the county court or any other court?

        (c)    Is the county court or any other court an "agency" of the county within the meaning of section (d) of the inquiry involved in Advisory Committee on Professional Ethics, Opinion 106, 90 N.J.L.J. 97 (1967), so as to preclude the county counsel from practicing in the county court or any other court?

    To answer these questions, reference must be made to R. 1:15-

3(a).

            Sheriffs and County Prosecutors. An attorney who is a sheriff or county prosecutor, or is in the employ or service of such an official shall not practice on behalf of any defendant in any criminal quasi- criminal or penal matter, whether judicial or administrative in nature. Nor if he is a sheriff of any county or in the sheriff's employ shall he practice in any court in that county.

Answers

    (a) If county counsel is called upon to advise and represent the sheriff in his official capacity, he is not precluded from practicing in the county court or any other court except as set forth in Opinion 106 as to criminal matters, since he is not a person who "is in the employ or service of such an official" i.e., the sheriff. The county counsel is in the employ of the board of freeholders as an administrative matter, and is appointed by it.     The basic principles limiting the practice of county counsel are set forth in this Committee's Opinions 88, 89 N.J.L.J. 49 (l966); 106, 90 N.J.L.J. 97 (1967); l68, 93 N.J.L.J. (1970); 202, 94 N.J.L.J. 309 (1971).
    (b) What we said in (a) disposes of the question raised here.
    (c) The county, or any other court is not an "agency" of the county within the meaning of section (d) of the inquiry involved in Opinion 106.

Questions

    2. The county surrogate is not an attorney and is not separately advised and therefore refers questions to the inquirer as county counsel.
        (a)    Is the inquirer precluded from practicing before the surrogate or in the probate division of the county court?
        (b)    If the surrogate had his own attorney other than the county counsel would the "official county family" relationship be such as to preclude the county counsel from practicing before the surrogate or in the probate division of the county court?

        (c)    Is the county surrogate's office an "agency" of the county within the meaning of section (d) of the inquiry involved in Opinion 106 so as to preclude the county counsel from practicing before the surrogate or in the probate division of the county court?

    To answer these questions, reference must be made to R. 1:15-

1(d).

            Surrogates. An attorney who is a surrogate or deputy surrogate in any county, or who is in the employ of any such official shall not practice in any criminal, quasi- criminal or penal matter, whether judicial or administrative in nature, in that county, nor in the probate division of any county court or in any estate or trust matter in any court.

Answers

    (a) A careful reading of this rule would indicate that the county counsel is not precluded from practicing before the surrogate or the probate division of the county court, since he is
not a person "who is in the employ of such official," i.e., the surrogate. As was stated in answer to question 1(a) herein, county counsel is precluded by R. l:l5-3(a) from practicing in the courts of the county in "any criminal, quasi-criminal or penal matter." Nor may he practice "in the probate division of any county court or
in any estate or trust matter in any court." But, these prohibitions are obviously directed only to any surrogate or deputy who may be a lawyer or to lawyers who are employed "by such official," i.e., the surrogate.
    (b) What we have said in answer to question 2(a) above disposes of the question raised here.
    (c) The surrogate's office is not an agency of the county within the meaning of section (d) of our Opinion 106, supra. The surrogate is a statutory officer elected by the people of his county (N.J.S. 2A:5-1). Any vacancy in the office of surrogate, or if a surrogate after being duly elected is unable to qualify, is filled by the Governor (N.J.S. 2A:5-6,7).

Questions

    3. N.J.S.A. 40:55-53 provides that "whenever a hearing is required before a zoning board of adjustment or the governing body of a municipality in respect to the granting of a variance or establishing or amending an official municipal map involving property adjoining a county road" the county planning board must be notified. N.J.S.A. 40:55-53.1 provides that "whenever a hearing is required in respect to planning, approval of subdivisions or establishing or amending an official map involving property abutting upon or adjacent to a State highway or county road and notice of said hearing is required to be given," the county planning board must be notified.
    (a)    Where the county counsel is the legal adviser for the county planning board is he precluded from representing a private client before a municipal body in a situation which would require notification of the county planning board under the above N.J.S.A. 40:55-53 or 53.1?
    (b)    If the county planing board is separately represented, is the county counsel under such disability?

Answers

    (a) County counsel is not precluded from representing a private client before a municipal zoning body, except in cases where the county or the county planning board is a party to the zoning proceeding under N.J.S.A. 40:55-53 or 40:55-53.1. Otherwise, the county has no interest in local zoning and a county counsel ought not to be prevented from representing private clients before local municipal zoning boards, except in the case of a hearing under N.J.S.A. 40:55-53. His representation of the county can hardly be said to carry with it any influence over local autonomous zoning bodies.
    (b) Even if the county planning board is separately represented, county counsel cannot represent a client before a municipal zoning body where the county is involved or has an interest. The county counsel would obviously have a conflict in such a situation.

Questions

    4. The inquirer is chairman of the board of directors of a bank in the county in which the county deposits some, but not all, of its funds. The inquirer's law office is listed as attorney for
the bank, but the bank also uses other law offices. Is there a possibility of conflict of interest in this situation so as to require a resignation by the inquirer? Assuming that the inquirer
elects not to resign as county counsel then:
    (a)    Must the inquirer resign as chairman of the board of directors of the bank?

    (b)    Must he also resign as a director?

    (c)    Must his firm no longer be listed as attorneys for the bank?
    
    (d)    Must his firm also cease to represent the bank even though the bank is also represented by other attorneys?

Answers

    (a) We see no conflict of interest in a situation where the county counsel is chairman of the board of directors of a bank in which the county deposits some, but not all, of its funds. Presumably, these are demand accounts, the funds in which can be withdrawn or deposited at will by the county. Control over the funds is in the county treasurer, subject to disposition by the board of free holders. The county counsel has nothing to do with this phase of county activity.
    (b) For the reasons above stated, there is no need for the county counsel to resign as a director of such bank.
    (c) Nor is there a need for his firm to request that the bank no longer list it as its attorneys.
    (d) There is also no reason why the county counsel or his firm should not continue to represent the bank, which the inquirer states is also represented by other counsel.
    As we pointed out in Opinion 106 and other opinions, the problem is one of avoiding a situation where the public could conclude that, by reason of being county counsel the inquirer was
able to obtain for the bank some consideration not available to other banks in the county. If this were the sole bank of deposit for county funds and other banks assisted in the county, our conclusions would be different because then the inference would be inescapable that the deposit came to this bank because of the influence of county counsel. Since the county counsel is not the financial officer of the county, and in fact has nothing to do with the county's banking activities, we do not think that the deposit of funds in this bank, along with others in the county, could give rise to any invidious inference because he is chairman of the board of directors of the bank and his firm is counsel for it.

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