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                                         118 N.J.L.J. 544
                                        October 23, 1986


Appointed by the Supreme Court of New Jersey

OPINION 545 (Amended)

Conflict of Interest
Attorney Representing
Different School Districts

    By order of October 8, 1985, the Supreme Court remanded to this Committee the matters concerned in its Opinion 545, 114 N.J.L.J. 495 (1984) directing a hearing to expand the record on the actual extent of conflict or appearance of conflict between positions of a regional high school board attorney and an attorney for a local school board in that district.
    After advertisement, correspondence and telephone notice, the Chairman and two members of this Committee held a hearing on January 13, 1986 at facilities in Rutgers Law School, Newark.
    The Committee heard five attorneys, including an attorney representing the New Jersey School Boards Association, five superintendent's of school boards (local and regional), and Dr. Seymour Weiss, Director of Controversies and Disputes of the State Department of Education (and himself a former superintendent of schools).
    In addition to this testimony, this panel had before it affidavits from seven attorneys, letters from two attorneys, and letters from five superintendents of schools.

    Although the Court's directive called for information from elected or appointed school board members, there was no testimony, oral or written from such persons, notwithstanding adequate notice of the hearing.
    Of the 610 districts served by the New Jersey School Boards Association, there appear to be 19 regional districts in which an attorney serves both regional and local districts, and 24 local districts whose attorneys also furnish legal services to the regional district in which the local district is located.
    All the persons who spoke or filed letters with our Committee considered dual representation an economical and efficient way to provide legal assistance.
    The professional educators and lawyers who appeared reported that many attorneys represent more than one school district; and that attorneys for many regional districts also represent one or more of the local boards of municipalities served by regional districts. In the cases of all of the boards who appeared or corresponded with the Committee, they are aware of the dual representation of the attorneys who represent them, and perceive no conflict in that dual representation.
    A number of school superintendents stated that in exercising the duties of superintendent, they functioned as de facto legal officers of their school districts; and that resort to school
attorneys was limited to special matters.See footnote 1 1 Although the two forms
of contracts for legal services contained in the Petition for Review filed by Rand and Algeier required attorneys to attend all board meetings unless excused, the witnesses all asserted that most school attorneys rarely attended routine board meetings. It is the experience of the members of this Committee that regular attendance of board attorneys at work sessions and public meetings has been current practice in a number of boards. Frequently, such board attorneys are called upon to solve problems in the areas of personnel selection, employment and termination, employee grievances and their resolution, grievance arbitration, negotiation of collective bargaining agreements and the formation of contracts for goods and services, classification and placement of classified pupils, tenure matters, pupil discipline, educational malpractice, damage claims, and the development of board policies, to name a few of the areas actively dealt with by board attorneys.
    David Rand, Esq., the current President of the New Jersey Association of School Attorneys, (400 members) maintains in his affidavit of January 18, 1985, before the Court in his Petition for Review, that the trend in educational services among boards has been to form groups in order to regionalize and to pool services such as bulk purchases, transportation, special education and other technical services in the interest of efficiency and to lower costs. He has found no history of conflict among boards in this area.
    All the witnesses before the panel asserted that the chief opportunities for conflict in the local/regional mode lay in proposals to withdraw from a regional district or to join one. All concurred that whenever such conflicts appeared, the attorneys concerned always withdrew. One attorney stated that he would employ at his expense special counsel to take his place when in a conflicting position. (We note here that where special counsel must be engaged, the employment of such special counsel must be the action of the board and not that of the attorney who finds himself in the conflict situation). One superintendent asserted that the only possible conflicts would arise when two districts with a common tax source were obliged to settle a damage claim. In such event, he believed that the attorney representing both parties "...could serve best as an unbiased arbiter... " We do not agree. This creates an obvious conflict.
    It is our opinion that attorneys may represent multiple boards including local boards of municipalities that make up a regional district and such district, provided the attorneys exercise special care to avoid being placed in positions where their ability to supply independent professional advice to one such board is impaired by the same duty to advise another board having opposing interests. Whether the conflict be real or an appearance of conflict to reasonable citizens of the respective districts, when an attorney for two or more districts finds that the ability to provide professional advice to one client impairs the proper representation of another client, such an attorney must relinquish representation of each board for the purposes of the resolution of the issues in conflict and advise the engagement of special counsel. Consent of the client-boards is not appropriate.
    Our Opinion 545, supra., is accordingly modified.
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Footnote: 1 1
N.J.S.A. 18A:17-20, and N.J.A.C. 6:3-1.12 oblige a superintendent to exercise general supervision over the schools in his district. A superintendent cannot function as lawyer to the district. The conflict is obvious. School attorneys are appointed under N.J.S.A. 18:A16-1 and function as officers under that statute.

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