103 N.J.L.J. 38
January 11, 1979
Municipal Counsel, County Counsel
We are asked about the propriety of an office association or partnership between counsel for a municipality and counsel for a county, or county board or commission of the county in which that municipality is located. It is suggested that there will be no impropriety if one of the parties withdraws from matters involving
both such clients.
Our opinion is that an association, partnership or other office-sharing arrangement between such attorneys is both unwise and improper. Disqualification of one attorney where the subject matter involves both clients will not remove the impropriety where the clients are the public. See our Opinion 390, 101 N.J.L.J. 183 (1978), Opinion 359, 99 N.J.L.J. 1153 (1976).
This Committee has issued many opinions on the ethical concerns affecting the representation of two or more public bodies by the same attorney or by partners or associates of the same firm.
We have consistently held that where there is or may be a conflict of interest in a particular situation the same attorney or his associates or partners should not undertake to represent two public bodies. Opinion 337, 99 N.J.L.J. 588 (1976), Opinion 199, 94 N.J.L.J. 225 (1971), and, where the conflict arises, that both attorneys must disqualify themselves, a consequence that ill serves the public. Opinion 300, 98 N.J.L.J. 126 (1975), Opinion 59, 87 N.J.L.J. 741 (1964), and compare Opinion 44, 87 N.J.L.J. 297 (1964). Where we have found the potential for conflict between two public bodies or boards to be inherent in their duties we have held that an attorney or his partners or associates should not undertake to represent both of them. Opinion 164, 92 N.J.L.J. 831 (1969), Opinion 149, 92 N.J.L.J. 185 (1969), and compare Opinion 39, 87 N.J.L.J. 191 (1964).
Attorneys representing public bodies are the legal representatives of the general public; the county attorneys as respects the interests of the public of a county; see Opinion 106, 90 N.J.L.J. 97 (1967), Opinion 168, 93 N.J.L.J. 7 (1970), and municipal counsel as respects the citizens of that municipality Opinion 4, 86 N.J.L.J. 357 (1963). The governing principle applied to inquiries in this area is that counsel for the public must conduct themselves and their practice so as to avoid the appearance of impropriety. Opinion 359, 99 N.J.L.J. 1153 (1976), Opinion 268, 96 N.J.L.J. 1325 (1973), Opinion 204, 94 N.J.L.J. 445 (1971), and see Opinion 390, above.
While in this inquiry it is not clear that the functions of a municipal attorney and of an attorney for the county or of one of its agencies necessarily involve an inherent potential for conflict, we resolve the question by applying the rule that the appearance of impropriety must he avoided. The association or partnership of a county attorney and a municipal attorney of the same county could easily suggest to the public mind that in dealing with matters between municipality and county their respective attorneys may not bring the same objectivity to the problems as would be the case where each practiced law independently. The public may infer that because of their professional relationship these attorneys may be less vigorous in advocating their respective positions than would be the case were they from different law firms. As we noted above, it is no answer to say that where the interests of their respective clients are in conflict each will withdraw, because that not only increases the cost of legal services to the public, but also deprives the public client of representation by the attorney first selected by it. A client is entitled to counsel's independent professional judgment exercised objectively DR 5-106. So, when an attorney's public or professional relationship may raise questions about his ability to function in that manner, the conflicting relationship should be avoided Opinion 390, supra. Compare Opinion 261, 96 N.J.L.J. 1160 (1973), and Opinion 33, 87 N.J.L.J. 249 (1964).
For the foregoing reasons it is our view that these inquirers should not form an office association or partnership.