114 N.J.L.J. 53
July 19, 1984
OPINION 534
Conflict of Interest
Municipal Counsel Representing One or
More Officials on Charge of Willful
Violation of Civil Rights Under 42 U.S.C. 1983
We are asked whether or not municipal counsel may represent
any or all municipal officials on charges of intentional, willful,
and conspiratorial violations of civil and constitutional rights
under 42 U.S.C. 1983 and 42 U.S.C. 1985, where the municipality is
not a party to the suit. It is our opinion that municipal counsel
should not undertake such representation.
In our Opinion 526, 113 N.J.L.J. 383 (1984), we held that
where both the municipality and its officials were joined as
defendants on charges of willful misrepresentations and fraud, the
municipal counsel may represent the municipality, but ought not to
undertake the defense of the individual officials. We also held
that special counsel should be engaged to defend the municipality
when the day to day contact of counsel with the defending officials
is substantial and of such nature as to hazard the free independent
exercise of municipal counsel's judgment on behalf of the
municipality.
Upon the successful defense of a Section 1983 action against
a public official, the question arises: Should the municipality
indemnify?
In the event the Section 1983 action is successful and
involves punitive damages, the matter of indemnification for costs
and punitive damages is put in issue between the official and the
municipality. Since the municipal attorney must be free to exercise
his independent judgment in advising and defending the municipality
on the indemnification claim, that municipal counsel cannot
properly represent the municipal official against whom the action
was brought.
Where there may be several officials against whom such action
is brought, the potential for conflict increases by reason of
differences in the individual acts that may be proved. Some
defendants may become liable for punitive damages and others may
not. Hence, independent counsel may not represent more than a
single such defendant.
For the above reasons, we hold that each municipal official
should have separate independent counsel in a Section 1983 action.