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                                         115 N.J.L.J. 96
                                         January 24, 1985

                                         I/M/O Petition For
                                        Review of Opinion 552 Modified: 102 N.J. 194 (1986)


Appointed by the New Jersey Supreme Court


Conflict of Interest -
Municipal Counsel Representing
Municipalities and One or More
Officials or Employees in Same Litigation

    Since the issuance of this Committee's Opinion 526, 113 N.J.L.J. 383 (1984) and Opinion 534, 114 N.J.L.J. 53 (1984), we have received additional inquiries raising questions as to the scope of those opinions.
    Specifically, the questions are:
    1.    Whether a municipal attorney may represent his municipality, as well as non-supervisory police employees of that municipality in a civil rights action brought under 42 U.S.C. 1983?

    2.    If the dismissal of a civil rights claim against officials personally appears likely at or near the commencement of litigation, may the municipal or agency attorney move for a dismissal of the action on behalf of the individual defendants while at the same time representing the municipal or agency defendant?

    Several different civil rights situations have been presented
for our consideration, viz.:
    a.    The "classic" willful and malicious abuse of official power to deprive someone of protected rights - the original focus of 42 U.S.C. 1983.

    b.    The case of a single named defendant or group of defendants, where the real party in interest is the municipality.

    c.    The case of all the members of an entire governing body or planning board being named as individual defendants (along with the municipality or planning board, per se) where once again the object is compensation from the municipality.

    The inquirers have stated that in most instances such blanket naming of boards and governing bodies is usually subject to dismissal on summary judgment in that there is immunity for legislative and judicial acts. It is also said that to require individual representation in such circumstances, even where there are "wholesale" allegations of fraud or willful misconduct or malice against all board members, is to give litigants against public bodies a very powerful weapon for harassment.
    It has been suggested to us that it would be appropriate in each case for the municipal or agency attorney to make a judgment as to whether a conflict would exist in dual representations of the municipality or agency and its officials or employees based on the standards set forth in N.J.S.A. 59:10A-2, and based upon such judgment to decide whether it would be permissible for him to undertake the dual representations. We think not.
    To appreciate the breadth of the problem, we need only refer to the myriad of varying factual situations disclosed in the reported cases and the legal issues of absolute immunity, qualified immunity, absence of immunity, liability for compensatory damages, liability for punitive damages, intentional, reckless, wanton, willful misconduct, as well as possible crossclaims for indemnification. The problem is often further complicated by political pressures and subsequent changes in membership of governmental bodies.
    We can perceive an infinite combination of factual and legal circumstances, frequently complicated by political considerations, under which the problem of dual representation of governmental bodies and their officials and employees will arise, and the wide variety of conflicting decisions which members of the bar would arrive at in determining whether dual representation of the governmental body and the individual or individuals involved in any given situation was permissible.
    We are impressed with the need for one rule which will be applicable to all such situations. It is our conclusion that a governmental body, viz., county, municipality, planning board, zoning board, or other agency should be separately represented by its own attorney and that attorney should not represent any official or any employee of that body in litigation where the body and the official or employee are co-defendants. See RPC 1.7 - comment thereon and cases cited.
    The inquirers have pointed out that to require individual representation of the governmental body and each individual co-defendant could impose an economic hardship on the taxpayers. Lest the scope of this opinion be misunderstood, we wish to make clear that while the governmental agency requires separate representation, there is no ethical prohibition on one attorney representing all of the individual co-defendants if the provisions of RPC 1.7 are complied with. We are of the opinion that the public as a whole will be better served if conflicts, or the appearance of impropriety are avoided at the start of litigation rather than have them arise in the course of the matter and result in attorney disqualification, delay and additional expense.
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