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                                         106 N.J.L.J. 518
                                        December 18, 1980

ADVISORY COMMITTEE ON PROFESSIONAL ETHICS

Appointed by the New Jersey Supreme Court

OPINION 466

Conflict of Interest
Municipal and County Special Labor Counsel
Practicing before Municipal and County
Agencies or Litigating Against such Public Entities

    The Committee has received inquiries from lawyers retained as special counsel in labor matters by public agencies (counties and municipalities). Essentially we are asked the following questions:
    (1) May the lawyer or his firm appear on behalf of private clients before boards or agencies of the public corporation while serving as special counsel in labor matters?
    (2) Where retained in this capacity by a county, may the lawyer or his firm represent private clients before municipal bodies in the same county?
    (3) When would the lawyer be deemed to have concluded representation, i.e. after a labor contract has been consummated?
    The disabilities which attend acceptance of representation of a public entity continue to spawn a large proportion of the inquiries submitted to the Advisory Committee. While these are important and sensitive questions, with rare exceptions they are readily resolved. Where the interests of the public are involved, society and the profession are best served by adherence to a rigorous standard;

"... (I)f a person generally familiar with the affairs of the municipality could reasonably believe that an attorney in such a position would be subject to and hindered by a professional conflict of interest" such a conflict must be deemed to exist. The foregoing quoted language is from the opinion of the New Jersey Supreme Court in a matter entitled Perillo v. Advisory Committee on Professional Ethics, 83 N.J. 366 (1980).
    The cited opinion is the last word upon the subject and must be referred to henceforth as the source of the applicable principles. The Advisory Committee, of course, does not intend to say more or less than the Supreme Court said in the Perillo case, but it does wish to emphasize the precept which is set forth in the Supreme Court opinion in this language:
        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. See DR 9-101. As this Court stated in In re Cipriano, 68 N.J. 398, 403 (1975), '(t)o maintain public confidence in the bar it is necessary that the appearance of, as well as actual, wrongdoing be avoided.' Accord, In re Opinion 415, 81 N.J. 318, 323 (1979); Hiqgins v. Advisory Committee on Professional Ethics, 73 N.J. 123, 128-129 (1977); ABA Code of Professional Responsibility, Canon 9.

        The vantage from which such 'appearance' must be evaluated is not that of the attorney involved, but rather is that of the public. In Re Opinion 415, supra, 81 N.J. at 325; see In re Wilson, 81 N.J. 451, 456 (1979). 'Thus it is that sometimes an attorney, guiltless in any actual sense, nevertheless is required to stand aside for the sake of public confidence in the probity of the administration of justice.' State v. Rizzo, 69 N.J. 28 30 (1975); accord, In re Opinion 415, supra 81 N.J. at 323. 'Integrity is the very breath of justice. Confidence in our law, our courts and in the administration of justice is our supreme interest. No practice must be permitted to prevail which invites toward the administration of justice a doubt or distrust of its integrity.' Erwin M. Jenninqs Co. v. DiGenova, 107 Conn. 491,499, 141 A. 866, 868 (Sup. Ct. Errors 1928).

        This 'appearance of impropriety' doctrine, underlying this Court's Disciplinary Rule 9-101 ('Avoiding Even the Appearance of Impropriety'),'is intended to instill public confidence in the integrity of the legal profession.' In re Opinion 415, supra, 81 N.J. at 323. See ABA Code of Professional Responsibility, Canon 9. The necessity to dispel all appearances of any impropriety becomes even more compelling when the attorney is a government attorney, i.e., an attorney invested with the public trust. Such '(p)ositions of public trust call for even more circumspect conduct.' In re Opinion 415, supra, 81 N.J. at 324 (footnote omitted; see M. Freedman, Lawyers' Ethics in an Adversary System 80 (1975); R. Wise, Legal Ethics 258 (2 ed. 1970).

    Applying this standard to the facts set forth by the inquiries, we think that... "a person generally familiar with the affairs of the municipality could reasonably believe that an attorney in such a position would be subject to and hindered by a professional conflict of interest," and such a person would not perceive any material distinction between representing the public corporation generally as compared to representing that entity as special counsel in labor matters. This being so, it would be improper for the lawyer or his firm to represent private interests before (or in litigated matters against) the public entity during service as special counsel.
    As to precisely when the disability ends, see Opinion 294, 97 N.J.L.J. 993 (1974), and the various opinions dealing with "substantial responsibility" such as Opinions 258, 96 N.J.L.J. 751 (1973) and Opinion 276, 96 N.J.L.J. 461 (1973).
    Finally, absent any actual conflict of interest in a given situation we see no impropriety in appearing before (or in litigation against) municipalities located in a county where the attorney acts only as special counsel to the county in labor matters.

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