114 N.J.L.J. 53
July 19, 1984
Conflict of Interest
Municipal Counsel Representing One or
More Officials on Charge of Willful
Violation of Civil Rights Under 42 U.S.C. 1983
We are asked whether or not municipal counsel may represent
any or all municipal officials on charges of intentional, willful,
and conspiratorial violations of civil and constitutional rights
under 42 U.S.C. 1983 and 42 U.S.C. 1985, where the municipality is
not a party to the suit. It is our opinion that municipal counsel
should not undertake such representation.
In our Opinion 526, 113 N.J.L.J. 383 (1984), we held that where both the municipality and its officials were joined as defendants on charges of willful misrepresentations and fraud, the municipal counsel may represent the municipality, but ought not to undertake the defense of the individual officials. We also held that special counsel should be engaged to defend the municipality when the day to day contact of counsel with the defending officials is substantial and of such nature as to hazard the free independent exercise of municipal counsel's judgment on behalf of the municipality.
Upon the successful defense of a Section 1983 action against a public official, the question arises: Should the municipality indemnify?
In the event the Section 1983 action is successful and involves punitive damages, the matter of indemnification for costs and punitive damages is put in issue between the official and the municipality. Since the municipal attorney must be free to exercise his independent judgment in advising and defending the municipality on the indemnification claim, that municipal counsel cannot properly represent the municipal official against whom the action was brought.
Where there may be several officials against whom such action is brought, the potential for conflict increases by reason of differences in the individual acts that may be proved. Some defendants may become liable for punitive damages and others may not. Hence, independent counsel may not represent more than a single such defendant.
For the above reasons, we hold that each municipal official should have separate independent counsel in a Section 1983 action.