118 N.J.L.J. 94
July 24, 1986
Conflict of Interest - Multiple
Representation of Public Entities
in Environmental Damage Suit
The inquirer is a member of a firm which has been requested to
defend several municipalities in a multi-party environmental tort
suit. The request came from liability insurance carriers as well as
several uninsured municipalities. The suit names four hundred and
fifty defendants, including approximately sixty public entities. It
alleges in identical terms that all defendants dumped various
wastes in a landfill which by migration has caused personal injury
and property damage.
Although there are pertinent distinctions between the factual situation here and Opinion 552, 115 N.J.L.J. 96 (1985); modified, IMO Petition for Review of Opinion 552, N.J.(1986); the Committee feels that the observations made by the Supreme Court, based in part on the severe financial strains that the per se rule can have on local governments, are applicable here. The Court said:
We believe that the appropriate rule for dealing with potential conflicts of interest [in the case before the Court] must be grounded upon common sense, experience and realism. These considerations forcefully suggest that the joint representation of clients with potentially differing interests is permissible provided there is a substantial identity of interests between them in terms of defending claims that have been brought against all defendants. The elements of mutuality must preponderate over the elements of incompatibility. N.J.(Slip opinion at 13).