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                                             128 N.J.L.J. 18
                                            May 2, 1991


Appointed by the Supreme Court of New Jersey


Conflict of Interest - Municipal
Attorney Representing Township
in a Matter also Acting on Behalf
of a Member of the Governing Body
With a Private Interest in the Same Matter

    A Township Attorney makes the following inquiry:
        Assume the governing body of a Township in which a privately owned public airport is located has actively opposed and continues to oppose the airport on matters related to its expansion and particular operations and has directed its Township Attorney to represent it in such matters. Assume further that one member of the governing body is an immediate neighbor of the airport who has an active private air strip on his premises and previously authorized flight patterns, designed for safety in takeoffs and landings, were changed by the appropriate federal agency to the detriment of the private air strip. Assume further that the owner of the strip over a period of eight (8) months wrote three letters of inquiry to the federal agency and received no response so asked a partner in the law firm of the Township Attorney to write and request an answer which letter was written and directed to said agency. Could such letter request, with no other action taken or to be taken by the law partner, prevent the Township Attorney from continuing to represent the Township in all its municipal business and particularly in its further opposition to, or possible settlement negotiations with, the privately owned public airport?

    As is the case with Opinion 650, 128 N.J.L.J. 2 (1991), the Township Attorney premises his inquiry on actual facts which occurred before the inquiry was made. In that respect, we refer the Inquirer to Opinion 650, supra, 128 N.J.L.J. 2.

    There is, however, a distinction between this inquiry and the County Counsel's inquiries in Opinion 650, supra, 128 N.J.L.J. 2. In said Opinion, we declined to define the parameters of the phrase "pending action" utilized in R. 1:19-2. In this case, while not setting outer limitations on the definition of that phrase, we decide that this inquiry clearly falls within its meaning. Although the inquiry does not disclose it, the Committee has learned that the Township is a co-defendant of the airport in presently pending litigation and is being represented by the inquirer in that litigation. Even though it is a defendant (as it must be in a suit such as this), the Township in fact supports the position of plaintiffs. The individual for whom the Township Attorney wrote the letter in question is a member of the Township Committee. While he is not named personally in the lawsuit, his position is the same as that of plaintiffs for all intents and purposes.
    In the course of any multi-party litigation, it is not uncommon as that litigation progresses for conflicts to arise as among the various co-plaintiffs and co-defendants to the suit. When this occurs, the aggrieved party usually moves before the court to disqualify the attorney who is in purported conflict. The motion is necessarily made to the court because this Committee does not decide issues arising in a "pending action." The underpinning for this lies not only in R. 1:19-2 itself, but in the underlying rationale discussed in Opinion 650, supra, 128 N.J.L.J. 2, as the basis for this Committee's acceptance of inquiries implicating in futuro conduct only: whether there is a conflict or an appearance of a conflict barred by RPC 1.7 is peculiarly fact driven.
    More pertinent to this inquiry, the Committee would be remiss if it did not comment upon the inquirer's certification under R. 1:19-2 and 3 that this inquiry is not the subject of a "pending action." We can only wonder by what rationale the inquirer certified that there was no "pending action." Compare R. 1:4-8.
    Because this inquiry clearly involves a pending action, this Committee lacks jurisdiction to render an advisory opinion.
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