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                                         102 N.J.L.J. 89
                                        July 27, 1978

ADVISORY COMMITTEE ON PROFESSIONAL ETHICS

Appointed by the New Jersey Supreme Court

OPINION 403

Conflict of Interest
Municipal Employee Defender -
Other Municipal Practice

    Two questions are presented to us arising out of the attempt by a municipality to provide independent legal representation for municipal employees where there is, or may be, a conflict of interest if the matter were handled by either the municipal attorney or the attorney for the insurance carrier engaged by the municipality. An example cited by the inquirer is the problem presented when a complaint of police brutality, arising out of the officer's official duties, is alleged in a lawsuit in which the plaintiff sues both the individual police officer and the municipality by which he is employed and seeks punitive, in addition to compensatory, damages.
    The municipality has proposed to enter into a contract providing for a stated sum to be paid as an annual retainer to an independent attorney who would act as a municipal employee defender. Said attorney would be available to any municipal employee who might choose to use his services. The contract clearly states that the municipal employee would be considered to be the client of the retained lawyer; that the lawyer's loyalty would be solely to the municipal employee; and that there would be no interference with the lawyer's independent professional judgment by the municipality. The employee could select an attorney of his own
choosing, but in that event the municipality would not pay the legal fees incurred.
    We are asked if the payment of the retainer by the municipality to represent the individual municipal employee would be a violation of DR 2-103(C); 2-103(D); 5-107(A) and 5107(B). We
are also asked if there might be a violation of Opinions 114, 90 N.J.L.J. 480 (1967); 172, 93 N.J.L.J. 81 (1970); 256, 96 N.J.L.J. 745 (1973) and 284, 97 N.J.L.J. 363 (1974). Under the circumstances presented we find such employment by the municipality to be among those envisioned as proper in DR 2-103(D)(1)(c), and not in any way violative of DR 2-103(C), 5-107(A)(1) or 5-107(B). We do not find our prior opinions cited above to be apposite under the circumstances proposed here.
    The other question presented is whether the attorney engaged under the said contract could continue to practice on behalf of other clients before the municipal court, boards and agencies of the municipality which had contracted to pay him the annual retainer fee called for in the proposed contract. In Opinion 265, 96 N.J.L.J. 1253 (1973), we were called upon to render an opinion arising under very similar facts wherein a municipal public defender salaried by a municipality asked if he could continue to
represent clients before the municipal court or other boards and agencies of that municipality. In that instance we said:

            We believe, however, that a public defender's representation of other defendants before the court and other bodies of that municipality is entirely proper. The attorney in discharging his duties as public defender has as his clients the indigent defendants he is called upon to defend and not the municipality. The fact that he is appointed and paid by the municipality is immaterial, for his undivided fidelity in any such representation is to the defendant whose cause he advances.

            Under such circumstances, the inquirer's appearances before the municipal court or other boards or agencies of the municipality present no conflict, real or apparent.

That conclusion appears to be appropriate in this matter also.

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