128 N.J.L.J. 2
May 2, 1991
Conflict of Interest- County Counsel
Representing Private Client, With
Which the County has a Contractual
Relationship, in Unrelated Litigation
A County Counsel poses two inquiries to this Committee,
seeking advice as to whether what he and his firm propose to do
in futuro is ethically proper. Specifically, the Inquirer asks:
(1) Assume a County Counsel represented the County in a contract negotiation through completion and execution by both parties with a waste disposal corporation and, thereafter, about one year later, with notice to the appropriate county official, represented the corporation in a litigation in a neighboring county against an out of county third party, the matter being unrelated to the County or the contract. Upon completion of that litigation representation, can the County Counsel represent the County on further matter directly related to its contract with the corporation?
(2) Assume that within the period of limited litigation representation of the corporation, matters arose during efforts to develop an interdistrict waste disposal agreement with a second county which made it necessary to obtain information and positions that would be taken by the waste disposal corporation related to the use of out of county facilities under the interdistrict agreement. Would it be appropriate and permissible for the County Counsel to participate in those inquiries and discussions in order to enable him and his Deputy to work out necessary terms and particulars for the interdistrict agreement? Would it further be appropriate for the County Counsel, after the interdistrict agreement had been entered into and guaranteed minimum waste flow established, to assist the attorney for and operator of the DEP-authorized transfer station, through which the County's waste was directed to flow, to obtain relief from its monthly minimum delivery requirements at the same waste disposal corporation in order to make certain the minimum flow deliveries under the interdistrict waste agreement could be met thereby protecting the County from facing the obligation of having to pay many hundreds of thousands of dollars for waste not delivered under the terms of its minimum flow agreement?
No rule or case yet defines the scope of this Committee's jurisdiction. The only written restriction is that the Advisory Committee on Professional Ethics "shall not consider an inquiry involving a pending action where its opinion might affect the interest of the parties, and it may decline to accept any inquiry without stating its reasons therefor." R. 1:19-2. This Committee was established in 1963 and over the course of its existence has come to define its jurisdiction to include, among other topics, inquiries about projected future conduct. Cases on which it gives guidance range from inquiries clearly covered by previous advisory opinions to novel inquiries not covered by existing advisory opinions. A common thread runs through all these cases, though: the Committee does not render opinions regarding completed conduct or present conduct for which the inquirer is being challenged.See footnote 1 1 The reason for this is simple: completed or present conduct may subject an inquirer to possible disciplinary sanctions, while projected conduct does not and cannot, until it has been embarked upon. Disciplinary sanctions are within the province of the Office of Attorney Ethics through its constituent District Ethics Committees and the Disciplinary Review Board under R. 1:20.
In support of his inquiries, the County Counsel does not recite hypothetical facts giving rise to his dilemma, but rather, recites a series of alleged facts which date back over a three-year period. Since these facts are actual, not hypothetical, anybody faced with an inquiry about them must first ascertain whether the facts as stated are both accurate and complete. Such an assessment is not within the purview of this Committee, but rather, falls within the jurisdiction of either the Office of Attorney Ethics or the District Ethics Committee, both of which have fact-finding capabilities and are given the appropriate investigative tools, such as the power of subpoena, to assess, weigh and find facts and to consider whether completed conduct, as opposed to contemplated conduct, is violative of the Rules of Professional Conduct. See, in general, R. 1:20. While this Committee may conduct hearings in its discretion under R. 1:19-4, this subsection has been invoked but rarely, and then only to secure the views of various interests on a particular issue, not to make findings of fact. Because an inquirer must certify that the inquiry does not involve a pending action, the negative implication is that this Committee does not have jurisdiction over a second category of cases, those which involve pending actions. Although this inquirer has certified that the questions here do not involve a pending case or controversy, it is clear that there is, at minimum, public controversy, although perhaps not a pending case, concerning the very matters which are the subject of the inquiries. Indeed, from the date the inquiries were made in early March, almost daily articles on the exact issues forming the factual basis of the inquiries have appeared in The Star- Ledger, The Home News and The Courier News. The controversy has also found its way into the New Jersey Law Journal. See, inter alia, 127 N.J.L.J. 730 (March 21, 1991) and 890 (April 4, 1991).See footnote 2 2 Nevertheless, the Committee leaves for the subsequent opinion a definition of "pending action," while noting that the factual controversy here further underscores the need for fact finding.See footnote 3 3 In summary, this Committee's purpose is to advise whether contemplated future conduct runs afoul of the Rules of Professional Conduct. Because the inquiries here involve the propriety of conduct already completed, they are not appropriate for disposition by this Committee.See footnote 4 4
For the reason stated, we decline jurisdiction over these two inquiries.