87 N.J.L.J. 249
April 23, 1964
Conflict of Interest
An attorney who is a member of an appointive municipal library
board inquires as to the propriety of serving as both a trustee or
board member, and as attorney to the same library board in matters
where a fee is to be charged that board.
Local public library boards, in many areas of this State, are presently engaged in building programs. Their activities include referenda on the public questions presented for voter actions and large scale public construction. Hence, the professional services of a lawyer-trustee advising such a board are likely to be more than the casual advice customarily furnished gratis in this type of situation. In the role of board attorney, such a member is put into a lawyer-client relationship with his board. On this basis, he and his board become concerned with such matters as: his retainer, his fees, and the extent of legal services to be performed for the board; whether or not independent counsel should be engaged for a specific matter; and whether or not his services are satisfactory. Implicit here is the right to terminate the relationship as the board may decide. In his role as board member he is concerned with the board's response to his professional advice. The consequence is that the member who undertakes to represent his own board becomes an adviser to himself. If he disqualifies himself on matters affecting his professional relationship, he deprives the board of the statutory numerical strength provided for it.
It would seem that many times his personal interest in the performance of his public duties as a library trustee must necessarily conflict with his professional interests and duties as attorney to the board. There is an inherent danger and seeming impropriety in this situation comparable to dual representation proscribed by Canons of Professional Ethics, Canon 6. The fact that the library board is a public body precludes consent as justification. See Opinion 4, 86 N.J.L.J. 357 (1963), and Opinion 29, 87 N.J.L.J. 106 (1964), of this Committee; Drinker, Legal Ethics 120 (1953).
An attorney should avoid conflicting interests and situations which prevent him from giving candid, objective opinions unaffected by his own personal interests. Canons 6, 8 and 32.
A lawyer should be able to advise and act for his client without any thought as to his individual interest. Drinker, Legal Ethics 109-110 (1953).
As used above the term "individual interest" includes the interest of a public official serving as a member of a library board. As trustee of public funds, a board member ought not to be put in a position where his public office may be used to provide his professional means. R.S. 40:54-14 directs that library trustees shall not take compensation for their services. An affirmative answer to this inquiry would accomplish by indirection what the statute prohibits.
Since the employment of itself offends the ethical considerations involved and is contrary to the legislative policy exhibited in R.S. 40:54-14, it is the opinion of this Committee that a library board trustee who is an attorney should not perform professional services for the board on which he sits, whether or not a fee is charged.