99 N.J.L.J. 298
April 8, 1976
Confidential Communication to
School Board Attorney by Board Member
An attorney for a board of education asks if he should comply
with the board's request to reveal a confidence reposed in him by
a member of the board relating to the board's affairs. The member
requested the inquirer to draft a resolution censuring another
member, giving the inquirer background information to help draft
the resolution. The member requested that such information be kept
confidential since he might not introduce the resolution. The
inquirer drafted the resolution, but it was not introduced. Now the
board has directed the inquirer to give it the draft resolution.
The inquirer is in doubt as to his obligations under DR 4-101(B) relating to the revelation of a client's confidences. He cites our Opinion 226, 95 N.J.L.J. 54 (1972), for the proposition that an attorney for a municipal body represents not only that body, but also its individual members. That opinion, as also does Opinion 174, 93 N.J.L.J. 132 (1970), contains language to that effect in holding that there is no conflict of interest per se in an attorney for a municipal body representing a member of that body individually. Both opinions make clear, however, that a conflict might develop between the individual member and the body, in which case the duty of the attorney is to the body he represents.
This latter principle governs here. The inquirer makes clear that the board member did not consult him as his individual attorney, but rather as the attorney for the board, to have the attorney draft a resolution for the board. The member was not, therefore, in a position to demand secrecy or confidential treatment as to matters germane to the board's business. If the attorney had understood that the member was demanding secrecy or confidential treatment as against the board, he should have made it clear that he could not accept such confidences.
It is our view that the privilege or coincidence belongs to the client, which is the board, and not to the individual member whose interests now apparently conflict with those of the board. As recognized by the inquirer, this view is supported by N.J.S. 2A:84 20(2) relating to the non-availability of the privilege as to communications made to an attorney employed by two persons to act for them in common, where the communication in question relates to the subject matter of the employment. It is also supported by the ABA Comm. on Professional Ethics and Grievances, Opinion 202 (1940). That opinion held that an attorney for a corporation has a duty to disclose to the board of directors information relating to wrongful acts of executive officers, even where the information is obtained in confidence from such officers. In Opinion 202 the following language appears:
Since, however, the board of directors of the trust company is its governing body, we think A, with propriety, may and should make disclosures to the board of directors in order that they may take such action as they deem necessary to protect the trust company from the wrongful acts of its executive officers. Such a disclosure would be to the client itself and not to a third person. (Emphasis added)
Accordingly, we are of the opinion that the inquirer should comply with the board's request