106 N.J.L.J. 498
December 11, 1980
Conflict of Interest
School Board Attorney
Serving on Municipal Council
We are asked again whether or not an attorney who is counsel
to a local elective board of education and is thereafter elected to
a position on the borough council of the same municipality can
serve in both capacities.
At first blush, the question appears to be a substantive question of dual office-holding not within the competence of this Committee See Schear v. City of Elizabeth, 41 N.J. 321, 325-329 (1964). We feel, however, that a substantial conflict of interest question is present. See Opinion 430, 104 N.J.L.J. 25 (1979). This is particularly true in view of this Committee's prior actions in the area. See Opinion 44, 87 N.J.L.J. 297 (1964); Opinion 39, 87 N.J.L.J. 191 (1964), Opinion 59, 87 N.J.L.J. 741 (1964).
These prior opinions contain serious caveats. In Opinion 39, supra, where a municipal attorney was advising an elected school board as its attorney, this Committee said:
While it is not inevitable that there will be any conflict between the board of education and the municipality, this may occur and it would be better if the attorney declined to serve in this dual capacity.
In Opinion 44, supra which involves substantially the same question as that before the Committee today, we held:
A note of caution--there may arise, however, a conflict even under the governmental setup outlined by the inquirer, e.g., the transfer of nongovernmental municipal lands to the board of education for school purposes; the rejection by the electorate of the school board's budget on two successive occasions whereupon the duty to fix the budget then rests upon the municipal councilmen. In instances of this nature it may be necessary for both partners to disqualify themselves to avoid a probable conflict.
Today, the solution of disqualification in the face of actual conflict when representing public bodies begs the ethical question in a dual manner. First concerning the solution of withdrawal upon actual conflict, our Supreme Court has recently noted in In re Opinion 415, 81 N.J. 318, 322 as follows:
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-105. 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.
Secondly, it ignores the appearance of impropriety doctrine as recently enunciated in Perillo v. Advisory Committee on Professional Ethics, 83 N.J. 366, 372-73 (1980):
As so often holds true in cases involving an attorney's professional ethics, we must here deal not merely with the presence of actual or likely conflict of interest. Rather we must confront the vexatious problem of the appearance of such impropriety and determine whether such appearance is sufficiently compelling to necessitate disqualification of counsel from representing certain clients in certain situations.