Rutgers School of Law, OAL case ACPE231

95 N.J.L.J. 201
March 9, 1972

ADVISORY COMMITTEE ON PROFESSIONAL ETHICS

Appointed by the New Jersey Supreme Court

OPINION 231

Conflict of Interest
Undertaking Intermunicipal
Action Effect on Practice

The inquirer, a law firm having several members, is consulted by a county and all of the municipalities in the county to challenge, upon constitutional grounds, the basis upon which welfare and other costs are allocated within the county. It is proposed that this firm be retained by all of the public bodies as special counsel solely for the purpose of bringing this action. Both the county and each of the municipalities have, and will continue to have, their own attorneys for general representation and we gather that in concept the inquirer would report to and consult with a committee of such attorneys.
The question presented is whether accepting such an assignment would preclude the law firm from (1) appearing before municipal and county agencies, on the usual variety of legal matters, (2) conducting tax appeals, (3) appearing in the municipal court of the constituent municipalities, (4) appearing before planning boards, boards of adjustment and the governing bodies, (5) suing any of the municipalities in behalf of private clients in negligence actions or seeking to invalidate ordinances which are believed to affect clients' rights.

    The firm does not serve as regular counsel for any of the public agencies and maintains a general practice which would include matters of the nature comprehended by (1) through (5) above. The proposed action may include, as defendants, the State of New Jersey, its officers and agencies and possibly the United States of America alleging inequities in the distribution of various general public costs and the plaintiffs may include the public agencies themselves, their officers and possibly private citizens, taxpayers and the like. We assume, however, that the legal costs will be apportioned among and paid by the public agencies.
    N.J. Advisory Committee on Professional Ethics, Opinion 138, 91 N.J.L.J. 805 (1968) is dispositive. There, we held that a municipal attorney could ethically undertake the formation of an intermunicipal agency "as distinct from its operation" (emphasis added) and that such would not ethically preclude him from appearing before municipal courts and other agencies of the participating municipalities other than the one he regularly represents. The inquirer acknowledges that this opinion most nearly treats the issues here and submits that this special undertaking ought not to disqualify his firm generally from undertaking matters in which the interests of the client are adverse to a municipality which is part of the group.
    It is a close question, and must be assessed by the standard which we have repeated so often in our opinions, most recently in Opinion 214, 94 N.J.L.J. 600 (1971), that an attorney must "avoid all situations that might reasonably lead the public to conclude that he has used the influence of his office to serve private interests or which otherwise cast doubt upon his fidelity to the municipality which he serves."
    Consistent with Opinion 138, and assuming that the law firm in question will in all respects be continuously insulated by all or a committee of the attorneys regularly representing the group, it is our opinion that the inquirer may undertake the limited assignment without offending ethical precepts.
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