102 N.J.L.J. 489
November 30, 1978
Conflict of Interest
Municipal Attorney or Special Counsel
Defending Municipality Against Former Mayor
A municipal attorney inquires whether he or the township's
special counsel, employed to represent the interests of the
township in those matters where there would be a conflict of
interest if conducted by the municipal attorney, may defend the
township in a suit instituted by the former mayor to recover
personal legal expenses incurred in defending charges of defamation
and libel for incidents which occurred while he was mayor.
We are informed by the inquirer that some time ago the mayor consulted him, on one or two occasions, requesting advice as to whether the governing body had the authority to pay the legal fees or if it had any obligation to do so. There can be no doubt that under these circumstances there would be a conflict of interest if the municipal attorney had to defend the township in the suit by the mayor.
The second question, concerning the representation of the township by special counsel, is complicated only by the fact that the present special counsel was formerly employed by the same former mayor as public defender for the township. Although appointed by the mayor he was independent of the control of the mayor and governing body. We are also informed that he never had any attorney client relationship with the mayor at any time.
These circumstances do not present a problem of impropriety or actual conflict of interest. See Opinion 403, 102 N.J.L.J. 89 (1978), wherein this Committee under very similar circumstances discussed in full the issues raised in this second question.