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122 N.J.L.J. 1630 ADVISORY COMMITTEE ON PROFESSIONAL ETHICS
December 19, 1988
Appointed by the Supreme Court of New Jersey
Conflict of Interest: Municipal
Attorney Representing Police
Officers in Legal Proceedings
Arising From Their Professional Duties
This inquiry seeks an opinion as to the propriety of an
attorney who represents a municipality reserving to himself and his
associates the exclusive representation of police department
members in legal proceedings brought against those members.
New Jersey municipalities are obligated by statute to provide
police department members with the necessary means for defense in
certain actions or proceedings brought against them.
N.J.S.A. 40A:14-155, as amended, provides in part:
Whenever a member or officer of a municipal
police department or force is a defendant in
any action or legal proceeding arising out of
and directly related to the lawful exercise of
police powers in the furtherance of his
official duties, the governing body of the
municipality shall provide said member or
officer with necessary means for the defense
of such action or proceeding, but not for his
defense in a disciplinary proceeding
instituted against him by the municipality or
in a criminal proceeding instituted as a
result of a complaint on behalf of the
Police officers have no absolute right to counsel of their own
choosing at municipal expense. A municipality may present an
officer with the choice of either accepting assigned counsel or
foregoing the benefits which are statutorily provided. Critchley
and Roche v. City of Newark, 206 N.J. Super. 32, 37-38 (App. Div.
The municipality must be given the opportunity to determine
whether it will provide legal representation itself or whether it
will approve the retention of private counsel by a police officer.
As long as the police officers are offered the services of a
reasonably competent attorney, the municipality has met its
obligation under the statute. Id. at 38.
While in some circumstances where the municipal attorney
represents a police officer a conflict of interest may not be
patent, the potentiality for such a conflict is substantial.
The municipal attorney's primary client is the municipality.
The attorney's ability to represent that client can, under certain
circumstances, be jeopardized by the attorney's concurrent
representation of police officers. The seeds of conflicting
interests appear in many instances. For example, charges such as
false arrest, assault and battery or police brutality have
inherently a potentiality for subsequent actions against the
municipality or action by the municipality against the officer. The
attorney would be unable to act on behalf of the primary client in
such cases. There would be a similar disqualification should a
police officer challenge the quality or effectiveness of the
attorney's representation if it were furnished by the municipality.
Also, it is not uncommon for municipal counsel to represent
their municipal clients in the course of negotiations with Police
Benevolent Associations. Indeed, such are the very circumstances
set forth in this inquiry. If an attorney so represents the
municipality and at the same time represents an individual member
or members of the adversarial party to the negotiations, he clearly
represents conflicting interests. See The Township of Edison v.
Mezzacca, 147 N.J. Super. 9 (App. Div. 1977)
This Committee concludes that the role of a municipal attorney
designating himself or his firm as exclusive counsel to all police
officers in the defense of charges against those officers, while it
may not be tantamount to a conflict of interest per se,
nevertheless has such potentiality for ensuing conflicting
situation that it should not be undertaken as a matter of general
However, we are not unmindful of the Supreme Court's decision
involving the review of our Opinion 552. Petition for Review of
Opinion 552, 102 N.J. 194 (1986). There, where we stated that it is
never proper for an attorney to simultaneously represent a
governmental entity and any of its officials or employees when they
are co-defendants in a civil rights action, the Court deemed that
position to be too broad and held that where no actual conflict of
interest was present, such dual representation would be permissible
in the specific circumstances present.
Such reasoning appears to be equally applicable to the instant
inquiry and the otherwise preclusive holding herein above stated is
subject to similar exceptions where appropriate under the factual
Accordingly, such dual representation should be undertaken
only after careful circumspection.
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