Rutgers School of Law, OAL case ACPE653

129 N.J.L.J. 514
October 17, 1991

ADVISORY COMMITTEE ON PROFESSIONAL ETHICS

Appointed by the Supreme Court of New Jersey

OPINION 653

Conflict of Interest: Partner of
County Counsel Serving as Counsel
to County Vocational School Board

Inquiry has been made as to whether, in a county of the first class governed under the county executive plan, a county counsel's partner may serve as counsel to the county's vocational school board. In essence, the inquiry may be reduced to whether the county counsel may serve as counsel to the county vocational school board (hereinafter "board").
In a county of the first class, the county counsel is appointed by the county executive with the advice and consent of the board of freeholders. N.J.S.A. 40:41A-37. The board of education of a county vocational school is also appointed by the county executive. N.J.S.A. 18A:54-16. Thus, the county vocational school board is an appointed board, as distinguished from an elected board in a Type II municipality. N.J.S.A. 18A:14-1 et seq. Here, since the board appoints its own counsel, the appointing authority for each of the respective counsel is essentially the same. Further, the funding for the county counsel's office and the county vocational school board, including counsel for the board, stems from the county government.

    While the Committee has in prior opinions made distinctions between attorneys appointed as counsel to elected and appointed municipal boards of education, the fundamental question posed by this inquiry is whether the appointment of a county counsel to serve as counsel to a county vocational school board will result in an "appearance of impropriety" under RPC 1.7(c)(2). Although this precise inquiry has not before been the subject of a formal opinion, the prior opinions suggest a resolution of this matter.
    In Opinion 39, 87 N.J.L.J. 191 (1964), the Committee was asked whether a municipal attorney could also advise an elective school board as its attorney. The Committee concluded that
        While it is not inevitable that there will be any conflict between the board of education and the municipality, this may occur and it would be better if the attorney declined to serve in this dual capacity.
    In Opinion 44, 87 N.J.L.J. 297 (1964), the Committee was asked whether an attorney who is a town councilperson may serve as counsel to the elective board of education. The Committee, focusing on the risk of conflict, sounded a note of caution:
        ... there may arise, however, a conflict even under the governmental setup outlined by the inquirer, e.g., the transfer of non- governmental municipal lands to the board of education for school purposes; the rejection by the electorate of the school board's budget on two successive occasions whereupon the duty to fix the budget then rests upon the municipal councilperson. In instances of this nature, it may be necessary for both partners to disqualify themselves to avoid a probable conflict.

    Similarly, in Opinion 464, 106 N.J.L.J. 498 (1980), the Committee was called upon to decide whether an attorney who is counsel to a local elective board of education, and is later elected to the borough council, could serve in both capacities. Although Opinion 44, supra, 87 N.J.L.J. 297, was cited approvingly, the Committee found that the solution of disqualification in the event of actual conflict between the two public bodies begged the ethical question in two ways. First, concerning the solution of withdrawal upon actual conflict, the Committee relied upon the Supreme Court's holding in In re Opinion 415, 81 N.J. 318, 322 (1979):
        ... it is no answer to say that where the interests of their respective clients are in conflict each will withdraw, because that not only increases the cost of legal services to the public, but also deprives the public client of representation by the attorney first selected by it. A client is entitled to counsel's independent, professional judgement exercised objectively ... so, when an attorney's public or professional relationship may raise questions about his ability to function in that manner, the conflicting relationship should be avoided ....
Second, the solution ignored the appearance of impropriety doctrine enunciated by the Supreme Court in Perillo v. Advisory Committee on Professional Ethics, 83 N.J. 366, 372-73 (1980):
        As so often holds true in cases involving an attorney's professional ethics, we must here deal not merely with the presence of actual or likely conflict of interest. Rather we must confront the vexatious problem of the appearance of such impropriety and determine whether such appearance is sufficiently compelling to necessitate disqualification of counsel from representing certain clients in certain situations.

        ...

        This "appearance of impropriety" doctrine ..."is intended to instill public confidence in the integrity of the legal profession." In re Opinion 415, supra, 81 N.J. at 323...The necessity to dispel all appearance of any impropriety becomes even more compelling when the attorney is a government attorney, i.e., an attorney invested with the public interest. Such"(p)ositions of public trust call for even more circumspect conduct."
    Consequently, the Committee concludes that although an actual conflict of interest may not be present, the inherent risk of conflict and, more importantly, the appearance of impropriety, RPC 1.7(c)(2), prohibits the partner of a county counsel from serving as counsel to the county vocational school board.

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