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                                         99 N.J.L.J. 705
                                        August 12, 1976

ADVISORY COMMITTEE ON PROFESSIONAL ETHICS

Appointed by the New Jersey Supreme Court

OPINION 344

Conflict of Interest
Health Board Attorney Handling
Homeowners' Pollution Action

    The inquirer sets forth the following facts. He had been retained on a contingent fee basis by several homeowners in a municipality to institute suit for damages against a private corporation whose agents had allegedly dumped dangerous chemicals on land near the homeowners' properties sometime prior thereto. The dumping may have caused the ground water under the clients' lands to become so polluted that they could not use the water from the wells located on their lands. Suit was originally brought in the form of a class action for all persons similarly situated and which may include an additional 200 homeowners. Subsequently, a group of homeowners formed an association for the purpose of either instituting a separate action under similar circumstances or joining in the then pending suit. We are informed that the association decided not to join in the pending suit.
    The local board of health subsequently passed well ordinances requiring the inquirer's clients, as well as others in the area to
permanently cap their wells and to hook up into the line of the local water company. The municipality is not a party to the pending action.
    Sometime after institution of suit, the inquirer was appointed to the position of attorney to the local board of health. He then advised the board that outside counsel be retained if it needed advice on the well situation or if an action was to be brought for the purpose of prosecuting violations under the well ordinances. The inquirer also advised his personal clients that if they were contemplating bringing any suit against the board or had to be defended for violations of the well ordinances, that they would have to retain another attorney. He also advised his clients that he would withdraw as their attorney if they so desired. We are advised that the clients requested that the attorney continue as their representative with reference to the pending suit against the private corporation.
    Subsequent to the inquiry, the local board of health passed a resolution retaining special counsel to represent the board in all matters relating to and growing out of pollution of the ground water in the particular municipality.
    The inquirer poses three questions: (1) Is it proper to require the board of health to retain special outside counsel for any matters relating to the well situation; (2) If the answer to the above question is in the negative, what course of action should
I insist upon in order not to give the appearance of a conflict; and (3) Is it proper for me to continue as attorney for the homeowners solely in connection with the suit for damages against
the corporation?

    The answers to the inquirer's questions are clearly set forth in a directive issued by former Chief Justice Joseph Weintraub in a "Notice to the Bar," 86 N.J.L.J. 713 (1963), which stated:
            Because of some matters called to its attention, the Supreme Court wishes to publicize its view of the responsibility of a member of the Bar when he is attorney for a municipality or other public agency and also represents private clients whose interests come before or are affected by it. In such circumstances the Supreme Court considers that the attorney has the affirmative ethical responsibility immediately and fully to disclose his conflict of interest, to withdraw completely from representing both the municipality or agency and the private client with respect to such matter, and to recommend to the municipality or agency that it retain independent counsel. Where the public interest is involved, disclosure alone is not sufficient since the attorney may not represent conflicting interests even with the consent of all concerned.

    In N.J. Advisory Committee on Professional Ethics, Opinion 29, 87 N.J.L.J. 106, (1964), we cited the above language of the former Chief Justice's "Notice to the Bar" as being dispositive of the question raised in that inquiry and held that "[t]he public interest which demands that an attorney must withdraw from representing the public agency and private client as above related applies with equal, if not greater force, when both clients are public agencies."
    In the case of ln the Matter of A & B, Attorneys-at-Law, 44 N.J. 331 (1965), the Court stated:
            Dual representation is particularly troublesome where one of the clients is a governmental body. So, an attorney may not represent both a governmental body and a private client merely because disclosure was made and they are agreeable that he represent both interests. As Mr. Justice Hall said in Ahto v. Weaver, 39 N.J. 418, 431 (1963), "Where the public interest is involved, he may not represent conflicting interests even with consent of all concerned." Drinker, Legal Ethics, 120 (1953); American Bar Association, Opinions of the Committee on Professional Ethics and Grievances 89, 183 (1957). [Citing Mr. Chief Justice Weintraub in a "Notice to the Bar," 86 N.J.L.J. 713 (1963), supra.]

    Even though the board of health is not involved in the civil action, nonetheless the subject matter of the suit is so closely connected with what may become a board of health matter that it is the opinion of this Committee that the inquirer should withdraw from the law action with reference to his representation of the private clients as well as acting as attorney for the board of health concerning any matters relating to the well situation and the well ordinances.

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