129 N.J.L.J. 1038
December 9, 1991
Conflict of Interest: Municipal
Attorney Representing Members of
Governing Body in Private Matters
Unrelated to Township Business
The inquirer asks whether a municipal attorney may represent
individual township committee members in private matters involving
their own affairs which are unrelated to township business.
It is well recognized that in carrying out his official duties, a municipal attorney represents the collective governing body and not the individual members. This is based upon RPC 1.13(a) which states that a lawyer representing any organization represents the collective organization as distinct from directors, officers, employees, members and the like.
RPC 1.13(e) states that an attorney may represent both the organization and an individual member or members thereof, but this is followed by the caveat that if consent to dual representation is required by RPC 1.7, then it must be obtained before the dual representation is undertaken. It must be borne in mind, however, that a public entity cannot so consent. RPC 1.7(a)(2).
Our Supreme Court has ruled that multiple representation may not be undertaken even with consent where the appearance of impropriety would be present. Cf. Reardon v. Marlayne, Inc., 83 N.J. 460, 473 (1980); Dewey v. R.J. Reynolds, 109 N.J. 201, 213 (1988). RPC 1.7(c)(2) defines the appearance of impropriety as
... those situations in which an ordinary knowledgeable citizen acquainted with the facts would conclude that the multiple representation poses substantial risk of disservice to either the public interest or the interest of one of the clients.
Representation of a municipality and a township committee member is not per se prohibited. It may be undertaken, but only if the interests of the organization and the individual member are not in any way intertwined. If the interests of the member might require any sort of approval, action or issuance of a permit or license from a municipal agency or official, representation of those interests is barred from the outset. If the municipality might be affected directly or indirectly, the representation should not be undertaken. Thus, the representation of a member in acquiring commercial or investment property which might require later local action would be barred, although representation in purchasing a personal dwelling, as a general rule, would not. Neither the drawing of a personal will for the committee person or a family member, nor representation in a divorce, would be prohibited.
We have a further concern in connection with this type of dual representation. There may be occasions in the conduct of official business when there is a difference of opinion among members of the governing body as to which the attorney is called upon to render an opinion. If that opinion might favor the faction of which the attorney's client is a member, that situation may give rise to an appearance of impropriety which will cause the attorney to recuse himself. This is particularly true, although admittedly difficult, where the relationship with the individual client is substantial.