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128 N.J.L.J. 18
May 2, 1991
ADVISORY COMMITTEE ON PROFESSIONAL ETHICS
Appointed by the Supreme Court of New Jersey
OPINION 651
Conflict of Interest - Municipal
Attorney Representing Township
in a Matter also Acting on Behalf
of a Member of the Governing Body
With a Private Interest in the Same Matter
A Township Attorney makes the following inquiry:
Assume the governing body of a Township in which a
privately owned public airport is located has
actively opposed and continues to oppose the
airport on matters related to its expansion and
particular operations and has directed its Township
Attorney to represent it in such matters. Assume
further that one member of the governing body is an
immediate neighbor of the airport who has an active
private air strip on his premises and previously
authorized flight patterns, designed for safety in
takeoffs and landings, were changed by the
appropriate federal agency to the detriment of the
private air strip. Assume further that the owner
of the strip over a period of eight (8) months
wrote three letters of inquiry to the federal
agency and received no response so asked a partner
in the law firm of the Township Attorney to write
and request an answer which letter was written and
directed to said agency. Could such letter
request, with no other action taken or to be taken
by the law partner, prevent the Township Attorney
from continuing to represent the Township in all
its municipal business and particularly in its
further opposition to, or possible settlement
negotiations with, the privately owned public
airport?
As is the case with Opinion 650, 128 N.J.L.J. 2 (1991), the
Township Attorney premises his inquiry on actual facts which
occurred before the inquiry was made. In that respect, we refer
the Inquirer to Opinion 650, supra, 128 N.J.L.J. 2.
There is, however, a distinction between this inquiry and the
County Counsel's inquiries in Opinion 650, supra, 128 N.J.L.J. 2.
In said Opinion, we declined to define the parameters of the phrase
"pending action" utilized in R. 1:19-2. In this case, while not
setting outer limitations on the definition of that phrase, we
decide that this inquiry clearly falls within its meaning.
Although the inquiry does not disclose it, the Committee has
learned that the Township is a co-defendant of the airport in
presently pending litigation and is being represented by the
inquirer in that litigation. Even though it is a defendant (as it
must be in a suit such as this), the Township in fact supports the
position of plaintiffs. The individual for whom the Township
Attorney wrote the letter in question is a member of the Township
Committee. While he is not named personally in the lawsuit, his
position is the same as that of plaintiffs for all intents and
purposes.
In the course of any multi-party litigation, it is not
uncommon as that litigation progresses for conflicts to arise as
among the various co-plaintiffs and co-defendants to the suit.
When this occurs, the aggrieved party usually moves before the
court to disqualify the attorney who is in purported conflict. The
motion is necessarily made to the court because this Committee does
not decide issues arising in a "pending action." The underpinning
for this lies not only in R. 1:19-2 itself, but in the underlying
rationale discussed in Opinion 650, supra, 128 N.J.L.J. 2, as the
basis for this Committee's acceptance of inquiries implicating in
futuro conduct only: whether there is a conflict or an appearance
of a conflict barred by RPC 1.7 is peculiarly fact driven.
More pertinent to this inquiry, the Committee would be remiss
if it did not comment upon the inquirer's certification under R.
1:19-2 and 3 that this inquiry is not the subject of a "pending
action." We can only wonder by what rationale the inquirer
certified that there was no "pending action." Compare R. 1:4-8.
Because this inquiry clearly involves a pending action, this
Committee lacks jurisdiction to render an advisory opinion.
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