Rutgers School of Law, OAL case ACPE372

100 N.J.L.J. 633
July 21, 1977

ADVISORY COMMITTEE ON PROFESSIONAL ETHICS

Appointed by the New Jersey Supreme Court

OPINION 372

Conflict of Interest
School Attorney Representing
Teachers in Other Districts

    The inquirer is attorney for a board of education. The teachers and clerical employees of the board have as their collective bargaining representative a New Jersey Education Association (N.J.E.A.) affiliated organization. The attorney has been approached by a representative of the N.J.E.A. who inquired whether he would be interested in representing teachers or other members of N.J.E.A. affiliates in controverted matters in other school districts.
    We are informed that each school district has its own N.J.E.A. affiliate to which the N.J.E.A. provides a list of approved attorneys and if an approved attorney is retained, N.J.E.A. partially underwrites the expense of litigation.
    The query is:
        May a school board attorney undertake representation of employees in school districts he does not represent by becoming an approved attorney for the local affiliates of the New Jersey Education Association?
    In view of the N.J.E.A. participation in the expense of litigation, we presume that the legal work to be performed will be in the field of labor-management relations where the association as
collective bargainer for its members has an obligation to represent and protect their interests. We are unaware of any N.J.E.A. legal service plan which has been approved by our Supreme Court. See DR 2-103(D).
    The New Jersey Education Association is a professional organization which claims to represent 100,000 active, associate and retired educator members. It employs 73 professional plus 100 general staff as well as 75 negotiations consultants. It provides negotiations, grievance, legal and other assistance to over 1,000 local teacher and school employee associations as well as county and state faculty associations. Through its UniServ program it provides service to individual members and local and county associations in such areas as (1) coordination of state-national resources, including professional development, instructional improvement and human relations, (2) negotiation service, (3) contract administration and grievance adjudication, (4) local member consultation and individual service, (5) public relations and publicity, (6) legislative and political activity, (7) leadership development skills, (8) organization business management and membership promotion. These services are provided by 30 UniServ representatives located in 14 regional offices and the Trenton headquarters. In addition, six N.J.E.A. headquarters field staff members provide back-up technical assistance in the areas of organizational management, associate member services and negotiations.

    A brochure issued by N.J.E.A. to its present and prospective members sets forth in part the following:
    Financial Assistance
    The Professional Rights & Responsibilities Committee provides financial assistance to individual members and local associations involved in cases of nontenure teacher rights, discrimination, academic freedom, tenure protection, hardship suspensions, and assault and battery charges. N.J.E.A. also assists members with court suits, restraining orders, fact-finding inquiries, arbitration hearings, and interest-free loans. N.J.E.A. reimburses local affiliates one-half of arbitration fees.
    We are of the opinion that the representation, under N.J.E.A. sponsorship, by the inquiring attorney of teachers or other members of N.J.E.A. affiliates in controverted matters arising from their employment in school districts other than where he is attorney for the board of education would present a clear conflict of interest. He cannot become an approved N.J.E.A. attorney, whose fees for services to its members are partially underwritten by that association, and at the same tune represent a board of education in situations (viz., negotiations, grievances, arbitrations, discipline. discharge and tenure matters) where one of the numerous professionals or field staff members employed by N.J.E.A. will be involved in an adversary position as the collective bargaining agent for the employee involved or affected. No man can serve two masters. Since a board of education is a governmental body, as a matter of public policy it may not consent to the multiple representation.
    The proposed arrangement by N.J.E.A. should be declined as being a violation of DR 5-105. We refer the inquirer to our Opinion 362, 100 N.J.L.J. 1 (1977), and Opinion 353, 99 N.J.L.J. 862 (1976), as well as the opinions therein cited.

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