New Jersey State Bar Association - The voluntary Bar Association of New Jersey, serving members since 1899.

CONTACT:Barbara S. Straczynski
Acting Director of Communications

NJSBA Will Argue As Amicus In Case Involving Lawyers Representing Municipalities

NEW BRUNSWICK, NJ—The New Jersey State Bar Association will participate as an amicus curiae party when the New Jersey Supreme Court reviews an ethics opinion dealing with attorneys and their law firms representing local public agencies and private clients concurrently.

Advisory Committee on Professional Ethics (ACPE) Opinion 697 deals with potential conflicts of interest by lawyers who represent municipalities. Specifically, the opinion addresses whether an attorney whose partner represents a township zoning board, or housing authority, may simultaneously appear on behalf of private clients in that township’s municipal court and before agencies of the municipality. The committee ruled such representation involves a direct conflict of interest under RPC 1.7 (a) (1) and is unethical. The rule states “…A concurrent conflict of interest exists if the representation of one client will be directly adverse to another client…” and is prohibited.

The NJSBA brief argues that at issue is the preservation of RPC 1.8 (k) which sets forth a standard involving discretion on the part of the lawyer. The rule states, “A lawyer employed by a public entity, either as a lawyer or in some other role, shall not undertake the representation of another client if the representation presents a substantial risk that the lawyer’s responsibilities to the public entity would limit the lawyer’s ability to provide independent advice or diligent and competent representation to either the public entity or the client.”

The brief further contends that the ACPE erroneously relied on prior opinions grounded on the “appearance of impropriety” standard that has been rejected by the Supreme Court. The NJSBA also suggests that the Court consider limiting the identification of a public entity client to the specific agency involved, thereby limiting those conflicts as falling under RPC 1.7 (a) (1).

By clearly applying the RPCs as stated, “directly adverse conflicts involving the same agency would be flatly and incurably prohibited under RPC 1.7” according to the NJSBA’s brief. “All other public entity conflicts, where actual conflict may not be so clear, would be subject to the lawyer’s assessment under the substantial risk standard of RPC 1.8 (k).”

The NJSBA is awaiting an argument date and David H. Dugan of Medford will argue on behalf of the NJSBA.

The New Jersey State Bar Association, incorporated in 1899, is dedicated to the continuing education of lawyers and the public, to reforming and improving the legal system and to aiding in the administration of justice.