116 N.J.L.J. 271
August 22, 1985
Conflict of Interest - Contract
Attorney for County, Also Serving
as a Municipal Public Defender
The inquiry posed in this matter is whether an attorney who
has a written contract with a county to perform professional
services as an independent contractor at a fixed annual
compensation without any fringe benefits provided by the county,
can also act as Municipal Public Defender in a municipality within
that county and whether he can represent clients before municipal
courts in the county, other than the court in which he will be the
The Inquirer has obtained from the County Counsel a letter in which the latter assures him that no conflict exists and points out in a letter that the county makes it a practice to engage lawyers as independent contractors to perform such services for the county such as labor relations, health-related matters as well as zoning and planning.
The inquirer also submits a letter from the Solicitor of the City in which the inquirer is the Municipal Public Defender in which the former advises one of the city commissioners that he sees no conflict between the inquirer's position as a contractor with the county and that of Municipal Public Defender. He points out that, in the latter capacity, the Inquirer represents indigent defendants and not the municipality and hence, his fidelity is to the defendants and not to the municipality.
The inquirer submits a copy of the contract with the county in which it is clear that it is a special services contract and contains the specific statement that he "shall be an independent contractor and not a county employee".
In Opinion 489, 108 N.J.L.J. 525 (1981) the inquiry was whether it was proper for an attorney to undertake the defense of a municipality, its mayor and council, in the county where he was employed as Assistant County Counsel. The case in which the attorney was to be engaged was for a denial of civil rights and the county was not a defendant. We held that there was no conflict involved, citing two Supreme Court cases and our earlier Opinion 466, 106 N.J.L.J. 518 (1980). In that opinion, we said that an attorney who was special labor counsel to a county could bring litigation for private clients against municipalities in the same county.
In Opinion 501, 110 N.J.L.J. 342, (1981) we were asked, among other things, whether it was proper for an attorney to hold the position of Assistant County Counsel while also serving as Municipal Prosecutor of a town within the same county. We held that the two positions were not in conflict and that the attorney might serve in both capacities.
It is clear in this case that the inquirer is not a part of the County official family and is assigned specific civil cases. He is not, as the contract states, "a county employee". In his capacity as public defender, he does not represent anyone but individual clients and these have no adverse relationship to his employment by the county since the latter is not a party to the proceedings in any way, and his employment by the county is in civil cases whereas his employment as the public defender is solely in criminal cases.
In view of the fact that he is not representing any municipality or the county in his private criminal practice before municipal courts located within the county, except the one in which he is Public Defender. We find this not to be objectionable.