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                                         107 N.J.L.J. 549
                                        June 11, 1981

ADVISORY COMMITTEE ON PROFESSIONAL ETHICS

Appointed by the New Jersey Supreme Court


OPINION 483

Conflict of Interest
Representing School Officials
Sued by Teachers' Association
Then Representing Officials in
Civil Action Against Association

    The inquirer is attorney for a local board of education. He has represented the board and the superintendent of schools in various litigations brought by a teachers' association. Some eight different proceedings were brought by this association against the board, its individual members, the board secretary and the superintendent of schools. The actions were in the United States District Court before the Commissioner of Education, the New Jersey Public Employment Relations Commission and the Superior Court of New Jersey. In all instances, the actions were dismissed with the exception of the federal court suit which is still pending but in which a motion to dismiss has been made. The dismissal in the Superior Court was appealed to the Appellate Division which affirmed the dismissal.
    Counsel now inquires whether he can represent the individual members of the board of education and the superintendent of schools in actions for malicious prosecution and defamation against the teachers' association. He also asks whether, in such litigation, he may represent a former member of the board who, in the course of the litigation was alleged by the teachers' association to be the "source" of the information relied upon by the association bringing its various actions. In the course of the investigation of the charges brought by the association, the county prosecutor obtained from the "source" a full and complete sworn statement and concluded that there was no basis for any criminal action. Originally in view of the allegations concerning this "source," the inquirer represented only the superintendent and the individual members of the board but not the "source" who, at that point, had independent representation. The investigation disclosed no reason to believe that this former member was in fact the "source" of the adverse information. The Superior Court judge, in dismissing the suit before him, labeled the charges "baseless."
    The inquirer seeks guidance as to whether, in view of the foregoing, he is precluded from representing the board members including the so-called "source" and the superintendent in the contemplated litigation. He is concerned with the provisions of DR 5-105(A) which states:
        (A) A lawyer shall decline proffered employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment, except to the extent permitted under DR 5-105(C).

We find nothing in the facts presented to restrict counsel from bringing the actions contemplated. His representation of the board members and the superintendent in the prior litigation is not in any way in conflict with the action now to be brought and the above-cited rule is not, in our opinion, applicable.

    We said in Opinion 174, 93 N.J.L.J. 132 (1970):
        ... the attorney for the municipality represents the whole municipality. In so doing, he also represents individual officials of the municipality in the performance of their official duties. Accordingly, the municipal attorney is performing one of the duties for which he is employed when he represents a municipal official or municipal matters.

    The attorney for the board of education is in the same situation, vis-a-vis the board and its members. His representation of them in the various litigations does not in any way conflict with his proposed representation of them as individuals in their prospective suits against the association. There is no conflict between the position of the superintendent and the members of the board in this regard. Of course, in the future if a conflict should arise, as is entirely possible, between the superintendent and the board over other matters, then counsel would have to withdraw from the litigation.
    It is our opinion that there is no ethical objection to the proposed representation of board members and the superintendent including the former member described as the "source" in a suit against the original plaintiffs for malicious prosecution and defamation provided the respective interest of the parties do not collide or diverge.

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