Rutgers School of Law, OAL case ACPE285

97 N.J.L.J. 363
May 16, 1974

ADVISORY COMMITTEE ON PROFESSIONAL ETHICS

Appointed by the New Jersey Supreme Court

OPINION 285

Conflicts of Interest
Former Municipal Attorney
Action to Remove Governing Body Member

May a former municipal attorney bring suit to remove a member of the governing body, alleging improper official conduct (his vote for political aid) during the attorney's municipal employment, of which wrongdoing the municipal attorney had no knowledge during such employment?
A municipal attorney has the public, the governing body and its members as his clients. See our Opinion 42, 87 N.J.L.J. 285 (1964). There we held that former county counsel should not accept a case against his previous client if the subject matter related to any matters that were the subject of his services to the former clients. And in Opinion 258, 96 N.J.L.J. 751 (1973), we held that a former municipal prosecutor who merely performed the task of presenting dismissal of complaint to the municipal court, could properly represent the same plaintiff after terminating his municipal prosecutorship, in the same zoning violation case because he had neither "substantial responsibility" nor did he exercise more than "perfunctory responsibility" in the matter under DR 9-101(B).

    In this inquiry the attorney claims to have had no knowledge whatever of the alleged wrongdoing. Surely had he known of it, his duty would have included investigation and advice to the governing body and prosecution of appropriate action. Thus, while he had no contact with the events challenged, he did have "substantial responsibility" with regard to the subject matter in the event the facts were disclosed.
    DR 9-101(B) deals with "avoiding even the appearance of impropriety." See our Opinion 42, supra. And where there is the slightest doubt about it, the proffered employment should be refused. Wise, Legal Ethics 273 (2d ed. 1970). It is our opinion that the appearance of impropriety in this inquiry is sufficient to require the attorney to refuse the case, notwithstanding his lack of specific knowledge of the facts during his prior employment.
    He should, also, decline because his prior representation of the governing body is likely to affect the exercise of his independent judgment in this case. DR 5-101, our Opinion 42, supra. * * *

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