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                                         122 N.J.L.J. 1246
                                        November 10, 1988

ADVISORY COMMITTEE ON PROFESSIONAL ETHICS

Appointed by the Supreme Court of New Jersey

OPINION 619

Conflict of Interest:
Board of Education Attorney
Appointed after Attorney's
Partner Leaves Board as Member

    This inquiry asks the propriety of a partner of an attorney who is a school board member serving as the board's attorney immediately after the expiration of his partner's term on the board.
    N.J.S.A. 18A:12-1.1 prohibits school board members being hired by the board until six months have transpired after resigning or ceasing to be a member. Whether the six month waiting period applies in the situation where the cessation is the result of the expiration of the term is a matter of statutory interpretation, which is normally not the function of an ethics opinion. But for reasons discussed here, both the former board member and his partner should not serve as the board's attorney for six months following the board member's service, regardless of the interpretation of the statute.
    It is well established that neither an attorney nor his partner may appear before a public body of which he is a member. Opinion 70, 88 N.J.L.J. 161 (1965). Moreover, an attorney in such a position may not subsequently represent clients, before the public body or elsewhere, in matters which relate to the public body's proceedings when he served as a member. Id. In that opinion, involving membership on a board of adjustment, such a situation, "... invite[s] the suspicion that the private employment in matters subsequent to public proceedings was a reward for the attorney's earlier favorable vote or influence." Id.
    The Supreme Court has held, the case of an assistant prosecutor, not only that he may not represent any parties for whom there was prosecutor's office activity during his term of office, but that all criminal representation in his county is barred for six months after leaving office. In re Advisory Opinion No. 361, 77 N.J. 199 (1978). Although holding that his disqualification was personal only to the assistant prosecutor involved, and was not applicable to his partners, the Court held that New Jersey's broad approach of disqualification of a person in public office is necessary to "...avoid the appearance of impropriety even if none exists." Id. at 206.
    The conflict which occurs when an attorney represents a public body of which he is a member was also considered in Opinion 33, 87 N.J.L.J. 249 (1964). There it was determined that a library board member could not serve as the group's attorney. The inherent danger of conflict and appearance of impropriety in such a situation was violative of Canon 6, it was said. That Canon prohibited dual representation in many instances, and this meant, according to the opinion, that "[a]n attorney should avoid conflicting opinions unaffected by his own personal interest" (including his interest as a public official).

    The RPC's are more explicit on this point, RPC 1.7(b) stating that, "a lawyer shall not represent a client if the representation of that client may be materially limited by the ...lawyer's own interests." This Rule further provides that a public entity cannot consent to such representation. RPC 1.7(b)(2).
    The legislature has, for boards of education, adopted the same rule of a six month waiting period for subsequent employment by the board as the Court did in criminal representation by former prosecutors. Legislative policy coupled with the dictates of the RPC's mandate that an attorney should not accept subsequent employment by a board of education until a six month period has elapsed. This is so whether membership on the board ended by resignation during the term, or expiration of the term.

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