On June 25, 2019, the New Jersey Supreme Court’s Advisory Committee on Professional Ethics issued Opinion Number 736, deciding that a lawyer is not per se prohibited from concurrently serving as a municipal prosecutor and planning board attorney in the same borough. This Opinion represents the latest in an ongoing series over the years that have responded to RPC changes on the delicate and often complicated conflicts of interest analysis that accompanies the representation of government entities – while cautioning lawyers to be mindful of the case-by-case analysis in RPCs 1.7(a)(2) and 1.8(k) that still applies.
A lawyer considering an appointment to represent a municipality or one of its governing bodies should give careful consideration to the conflicts of interest that may arise in connection with the representation. Conflicts of interest, which a governmental entity cannot waive, and ethical violations may arise when, among other situations, a lawyer decides to represent a municipality and then appear before or sue a subsidiary board/agency in that same municipality. The ultimate question is whether the RPCs pertaining to conflicts of interest (RPCs 1.7-1.12) permit such a representation. The most specific and readily accessible guidance may be found in the Opinions issued by the New Jersey Supreme Court’s Advisory Committee on Professional Ethics, which has frequently addressed these issues.
Fortunately, over the years the RPCs themselves and the Committee’s interpretation of the potential restrictions have become less stringent in certain respects. For example, in 2004, the RPCs eliminated the “appearance of impropriety doctrine,” under which a lawyer’s representation of a governmental body/agency could be prohibited even if it did not present an actual conflict, if it created an appearance of impropriety. And, in 2006 the Supreme Court overturned the “member of the municipal family” doctrine, under which an attorney who represents a municipal or any of its agencies was deemed to have as his or client the entire municipality. See In re Supreme Court Advisory Committee on Professional Ethics Opinion No. 697, 188 N.J. 549, 564-66 (2006).
As of now, the Supreme Court has established three tiers of per se conflicts: (1) attorneys who “plenarily” (i.e., generally) represent a municipal body (e.g., the town attorney) are barred from representing private clients before that governmental entity’s governing body and all of its subsidiary boards and agencies, including its courts; (2) attorneys who plenarily represent an agency subsidiary to the governmental entity’s governing body (e.g., the planning board) are barred from representing private clients before that subsidiary agency only; and (3) attorneys whose scope of engagement by a governmental entity is limited and not plenary may not represent a private a private client before or against the governing body, but may represent a private client before the boards, agencies or municipal court of the municipality.
In Opinion No. 736, the Committee found that a municipal prosecutor practices in a manner that is limited in scope and not plenary inasmuch as (s)he has authority only to prosecute cases in municipal court in the name of the municipality or the State (compared with a municipal attorney, whose duties encompass all matters affecting the municipality). Thus, a municipal prosecutor may represent private clients in matters before an agency subsidiary to the municipality’s governing body. By extension, the Committee decided that a municipal prosecutor may concurrently serve as attorney for a subsidiary board or agency in the same municipality.
The Committee noted, however, that while there is no per se prohibition against such representation, the case-by-case restrictions under RPC 1.7(a)(2) and 1.8(k) still apply.