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115 N.J.L.J. 96
January 24, 1985
I/M/O Petition For
Review of Opinion
552 Modified: 102
N.J. 194 (1986)
ADVISORY COMMITTEE ON PROFESSIONAL ETHICS
Appointed by the New Jersey Supreme Court
OPINION 552
Conflict of Interest -
Municipal Counsel Representing
Municipalities and One or More
Officials or Employees in Same Litigation
Since the issuance of this Committee's Opinion 526, 113
N.J.L.J. 383 (1984) and Opinion 534, 114 N.J.L.J. 53 (1984), we
have received additional inquiries raising questions as to the
scope of those opinions.
Specifically, the questions are:
1. Whether a municipal attorney may represent his
municipality, as well as non-supervisory police employees
of that municipality in a civil rights action brought
under 42 U.S.C. 1983?
2. If the dismissal of a civil rights claim against
officials personally appears likely at or near the
commencement of litigation, may the municipal or agency
attorney move for a dismissal of the action on behalf of
the individual defendants while at the same time
representing the municipal or agency defendant?
Several different civil rights situations have been presented
for our consideration, viz.:
a. The "classic" willful and malicious abuse of official
power to deprive someone of protected rights - the
original focus of 42 U.S.C. 1983.
b. The case of a single named defendant or group of
defendants, where the real party in interest is the
municipality.
c. The case of all the members of an entire governing body
or planning board being named as individual defendants
(along with the municipality or planning board, per se)
where once again the object is compensation from the
municipality.
The inquirers have stated that in most instances such blanket
naming of boards and governing bodies is usually subject to
dismissal on summary judgment in that there is immunity for
legislative and judicial acts. It is also said that to require
individual representation in such circumstances, even where there
are "wholesale" allegations of fraud or willful misconduct or
malice against all board members, is to give litigants against
public bodies a very powerful weapon for harassment.
It has been suggested to us that it would be appropriate in
each case for the municipal or agency attorney to make a judgment
as to whether a conflict would exist in dual representations of the
municipality or agency and its officials or employees based on the
standards set forth in N.J.S.A. 59:10A-2, and based upon such
judgment to decide whether it would be permissible for him to
undertake the dual representations. We think not.
To appreciate the breadth of the problem, we need only refer
to the myriad of varying factual situations disclosed in the
reported cases and the legal issues of absolute immunity, qualified
immunity, absence of immunity, liability for compensatory damages,
liability for punitive damages, intentional, reckless, wanton,
willful misconduct, as well as possible crossclaims for
indemnification. The problem is often further complicated by
political pressures and subsequent changes in membership of
governmental bodies.
We can perceive an infinite combination of factual and legal
circumstances, frequently complicated by political considerations,
under which the problem of dual representation of governmental
bodies and their officials and employees will arise, and the wide
variety of conflicting decisions which members of the bar would
arrive at in determining whether dual representation of the
governmental body and the individual or individuals involved in any
given situation was permissible.
We are impressed with the need for one rule which will be
applicable to all such situations. It is our conclusion that a
governmental body, viz., county, municipality, planning board,
zoning board, or other agency should be separately represented by
its own attorney and that attorney should not represent any
official or any employee of that body in litigation where the body
and the official or employee are co-defendants. See RPC 1.7 -
comment thereon and cases cited.
The inquirers have pointed out that to require individual
representation of the governmental body and each individual
co-defendant could impose an economic hardship on the taxpayers.
Lest the scope of this opinion be misunderstood, we wish to make
clear that while the governmental agency requires separate
representation, there is no ethical prohibition on one attorney
representing all of the individual co-defendants if the provisions
of RPC 1.7 are complied with. We are of the opinion that the
public as a whole will be better served if conflicts, or the
appearance of impropriety are avoided at the start of litigation
rather than have them arise in the course of the matter and result
in attorney disqualification, delay and additional expense.
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