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                                     122 N.J.L.J. 1630
                                    December 19, 1988

ADVISORY COMMITTEE ON PROFESSIONAL ETHICS

Appointed by the Supreme Court of New Jersey

OPINION 623

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 municipality.

    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. 1985).

    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 policy.
    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 circumstances presented.
    Accordingly, such dual representation should be undertaken only after careful circumspection.
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