85-F-88 - Government official representing private client

FORMAL ETHICS OPINION 85-F-88


Inquiry is made concerning the propriety of representing claimants in an
action for damages against the State while serving as Speaker of the State
Senate and Lieutenant Governor of the State.


The propriety of an attorney-public official representing a private client in a proceeding
involving the public body he is elected to represent was first addressed by the Board in
Formal Ethics Opinion 81-F-4. The opinion adopted the "New Jersey Rule" set forth by
the New Jersey Supreme Court in the case of In Re: A & B, 44 N.J. 331, 209 A.H.2d 101
(1965) and the case of In Re: Dolan, 76 N.J. 1, 384 Atl.2d 1076 (1978) as follows:
... an attorney may not represent both a governmental body
and a private client merely because disclosure was made
and they are agreeable that he represent both interests ...
Where the public interest is involved, he may not represent
conflicting interests even with the consent of all concerned
....
... the Supreme Court wishes to publicize its view of the
responsibility of a member of the Bar when he is attorney
for a municipality or other public agency and also
represents private clients whose interests come before or
are affected by it. In such circumstances, the Supreme
Court considers that the attorney has the affirmative ethical
responsibility immediately and fully to disclose his conflict
of interest, to withdraw completely from representing both
the municipality or agency and the private client with
respect to such matter, and to recommend to the
municipality or agency that it retain independent counsel.
Where the public interest is involved, disclosure alone is
not sufficient since the attorney may not represent
conflicting interests even with the consent of all concerned
....
... It is fundamental that no attorney who holds a public
office should suffer anyone to attempt to gain an advantage
by virtue of his official status and, hence, it would be
improper for an
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attorney so situated to accept a retainer if he is aware that
the prospective client has that objective in mind ....
... Nonetheless, the subject of land development is one in
which the likelihood of transactions with a municipality
and the room for public misunderstanding are so great that
a member of the bar should not represent a developer
operating in a municipality in which the member of the bar
is the municipal attorney or the holder of any other
municipal office of apparent influence. We all know from
practical experience that the very nature of the work of the
developer involves a probability of some municipal action,
such as zoning applications, land subdivisions, building
permits, compliance with the building code, etc. ....
... It is accordingly our view that such dual representation is
forbidden even though the attorney does not advise either
the municipality or the private
client with respect to matters concerning them. The fact of
such dual representation itself is contrary to the public
interest ....
Subsequent Formal Ethics Opinions of the Board have adopted the reasoning of the "New
Jersey Rule." Formal Ethics Opinion 81-F-23 states that it is improper for a City
Attorney to defend a person prosecuted in Criminal Court by the City Police Department.
Formal Ethics Opinion 83-F-41 states that it is improper to represent persons prosecuted
by the County Sheriff's office when the attorney's associate is County Attorney. Formal
Ethics Opinion
83-F-53 states that it is improper for a County Attorney to counsel the county in
preparation of the county budget and also represent the sheriff and/or deputy sheriffs to
increase their budget or salaries. Formal Ethics Opinion 83-F-57 states it is improper to
represent a criminal defendant in state court on charges resulting from investigation and
prosecution by the city police when the attorney's associate is City Attorney. Formal
Opinion 83-F-58 states that it is improper for a judge of the County Juvenile Court to
represent the County School Board in an action against the County Commissioner relative
to the proper funding of the County School Board.
Ethics Opinion 186 of the American Bar Association states that a County Attorney may
not represent a defendant in a criminal case. The opinion states:
The county attorney should not accept employment where
his duties to his private client and his public duties may
conflict either directly or
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indirectly. Furthermore, for the county attorney charged
with public duties to accept employment adverse to this
public employer puts the county attorney in an unseemly
situation likely to destroy public confidence in him as a
public officer, and bring reproach to his profession. The
county attorney ... should refrain from accepting such
employment, as the interest of the accused for whom he
appears and the interest of the county of which he is an
officer are conflicting.
Ethics Opinion 1182 of the American Bar Association states that Disciplinary Rule 8-
101(A)(2) of the Code of Professional Responsibility proscribes a lawyer using his public
position to influence, or attempting to influence, a tribunal to act in favor of himself or of
a client. The opinion reasons:
... a lawyer appearing before an administrative board, the
compensation of whose members are fixed by the
legislative or the appointment of whose members are either
subject to approval by the Legislature or elected by the
Legislature, is in a strong or powerful position 'to use his
public position to influence, or attempt to influence,' the
administrative board to act in his favor. His very
appearance before such a board may be circumstantial
evidence of such influence or attempt to influence ....
An attorney may not breach his fiduciary duty as a public official in the representation of
private interests against the public body he represents. Therefore, the Speaker of the
Senate and Lieutenant Governor of the State may not represent claimants in an action for
damages against the State.
This 16th day of January , 1985.
ETHICS COMMITTEE:
C. T. Herndon, III
T. Maxfield Bahner
G. Wilson Horde
APPROVED AND ADOPTED BY THE BOARD