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118 N.J.L.J. 544
October 23, 1986
ADVISORY COMMITTEE ON PROFESSIONAL ETHICS
Appointed by the Supreme Court of New Jersey
OPINION 545 (Amended)
Conflict of Interest
Different School Districts
By order of October 8, 1985, the Supreme Court remanded to
this Committee the matters concerned in its Opinion 545, 114
N.J.L.J. 495 (1984) directing a hearing to expand the record on the
actual extent of conflict or appearance of conflict between
positions of a regional high school board attorney and an attorney
for a local school board in that district.
After advertisement, correspondence and telephone notice, the
Chairman and two members of this Committee held a hearing on
January 13, 1986 at facilities in Rutgers Law School, Newark.
The Committee heard five attorneys, including an attorney
representing the New Jersey School Boards Association, five
superintendent's of school boards (local and regional), and Dr.
Seymour Weiss, Director of Controversies and Disputes of the State
Department of Education (and himself a former superintendent of
In addition to this testimony, this panel had before it
affidavits from seven attorneys, letters from two attorneys, and
letters from five superintendents of schools.
Although the Court's directive called for information from
elected or appointed school board members, there was no testimony,
oral or written from such persons, notwithstanding adequate notice
of the hearing.
Of the 610 districts served by the New Jersey School Boards
Association, there appear to be 19 regional districts in which an
attorney serves both regional and local districts, and 24 local
districts whose attorneys also furnish legal services to the
regional district in which the local district is located.
All the persons who spoke or filed letters with our Committee
considered dual representation an economical and efficient way to
provide legal assistance.
The professional educators and lawyers who appeared reported
that many attorneys represent more than one school district; and
that attorneys for many regional districts also represent one or
more of the local boards of municipalities served by regional
districts. In the cases of all of the boards who appeared or
corresponded with the Committee, they are aware of the dual
representation of the attorneys who represent them, and perceive no
conflict in that dual representation.
A number of school superintendents stated that in exercising
the duties of superintendent, they functioned as de facto legal
officers of their school districts; and that resort to school
attorneys was limited to special matters.See footnote 1
Although the two forms
of contracts for legal services contained in the Petition for
Review filed by Rand and Algeier required attorneys to attend all
board meetings unless excused, the witnesses all asserted that most
school attorneys rarely attended routine board meetings. It is the
experience of the members of this Committee that regular attendance
of board attorneys at work sessions and public meetings has been
current practice in a number of boards. Frequently, such board
attorneys are called upon to solve problems in the areas of
personnel selection, employment and termination, employee
grievances and their resolution, grievance arbitration, negotiation
of collective bargaining agreements and the formation of contracts
for goods and services, classification and placement of classified
pupils, tenure matters, pupil discipline, educational malpractice,
damage claims, and the development of board policies, to name a few
of the areas actively dealt with by board attorneys.
David Rand, Esq., the current President of the New Jersey
Association of School Attorneys, (400 members) maintains in his
affidavit of January 18, 1985, before the Court in his Petition for
Review, that the trend in educational services among boards has
been to form groups in order to regionalize and to pool services
such as bulk purchases, transportation, special education and other
technical services in the interest of efficiency and to lower
costs. He has found no history of conflict among boards in this
All the witnesses before the panel asserted that the chief
opportunities for conflict in the local/regional mode lay in
proposals to withdraw from a regional district or to join one. All
concurred that whenever such conflicts appeared, the attorneys
concerned always withdrew. One attorney stated that he would
employ at his expense special counsel to take his place when in a
conflicting position. (We note here that where special counsel must
be engaged, the employment of such special counsel must be the
action of the board and not that of the attorney who finds himself
in the conflict situation). One superintendent asserted that the
only possible conflicts would arise when two districts with a
common tax source were obliged to settle a damage claim. In such
event, he believed that the attorney representing both parties
"...could serve best as an unbiased arbiter... " We do not agree.
This creates an obvious conflict.
It is our opinion that attorneys may represent multiple boards
including local boards of municipalities that make up a regional
district and such district, provided the attorneys exercise special
care to avoid being placed in positions where their ability to
supply independent professional advice to one such board is
impaired by the same duty to advise another board having opposing
interests. Whether the conflict be real or an appearance of
conflict to reasonable citizens of the respective districts, when
an attorney for two or more districts finds that the ability to
provide professional advice to one client impairs the proper
representation of another client, such an attorney must relinquish
representation of each board for the purposes of the resolution of
the issues in conflict and advise the engagement of special
counsel. Consent of the client-boards is not appropriate.
Our Opinion 545, supra., is accordingly modified.
* * *
Footnote: 1 1
N.J.S.A. 18A:17-20, and N.J.A.C. 6:3-1.12 oblige a superintendent
to exercise general supervision over the schools in his district.
A superintendent cannot function as lawyer to the district. The
conflict is obvious. School attorneys are appointed under N.J.S.A.
18:A16-1 and function as officers under that statute.
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