Can a municipal attorney appear with a municipal official subpoenaed to testify about municipal matters, and can the town pay for it?

Plain-English summary

The Committee was asked whether it is ethical for a municipal attorney to appear with a municipal official who has been subpoenaed to testify before the State Commission of Investigation on matters involving the municipality, whether it makes a difference that the official intends to testify fully and not invoke constitutional privileges, and whether the municipality may pay his bill.

The Committee reasoned that the attorney for the municipality represents the whole municipality and, in doing so, represents individual officials in the performance of their official duties, so the municipal attorney is performing one of the duties for which he is employed when he represents an official on municipal matters. It cautioned that an occasion may arise where the official's actions or testimony indicate he is not performing his duties on behalf of the municipality, or that his individual interests run contrary to the municipality's; in that event the attorney must withdraw and the official should seek separate counsel. To avoid difficulties from the start, if it appears the official may not testify fully or may invoke privileges, he should be advised to retain his own attorney before the hearing; and if a conflict develops during the hearing, the attorney should not continue but should seek an adjournment until the official can obtain separate counsel. Because the attorney represents the municipality, the Committee saw no reason the municipality could not compensate him for representing the official in the performance of municipal duties.

Currency note

This opinion was issued in February 1970, before New Jersey's September 13, 1971 adoption of the Disciplinary Rules (Code of Professional Responsibility), so the Committee was applying the Canons of Professional Ethics. It also predates the 1984 Rules of Professional Conduct and all later revisions. The organizational-client, conflict, and withdrawal principles it applied are now treated under RPC 1.7, RPC 1.13, and RPC 1.16. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.

Common questions

Q: Can the town attorney represent an official subpoenaed about municipal matters?

A: Yes. The Committee said the municipal attorney represents officials in the performance of their official duties, so he may appear with the official on municipal matters and the municipality may pay.

Q: When must the municipal attorney step aside?

A: When the official's actions or testimony show his individual interests run contrary to the municipality's; then the attorney must withdraw and the official should obtain separate counsel.

Q: What if the official may invoke the Fifth or not testify fully?

A: The Committee advised that the official then be told to retain his own attorney before the hearing, and that if a conflict develops mid-hearing the attorney seek an adjournment so the official can get separate counsel.

Background and rules framework

The opinion applied the principle that a municipal attorney's client is the entire municipality (so he may represent officials on official duties), coupled with the duty to withdraw when the official's interests diverge from the municipality's. In current New Jersey terms the analysis falls under RPC 1.7, RPC 1.13, and RPC 1.16.

Citations and references

Rules of Professional Conduct:

• Canons of Professional Ethics (conflicting interests; representation of an organization through its officials), as in effect 1970; now MR 1.7 / 1.13 and NJ RPC 1.7 / 1.13

See also

• NJ ACPE Op. 173: A Municipal Attorney Foreclosing Tax Sale Certificates for Private Clients
• NJ ACPE Op. 217: Municipal Utilities Authority Attorney and Town Agencies
• NJ ACPE Op. 324: Borough Attorney's Duty to Report a Mayor's Unauthorized Fees

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp174-1.html
• Issuing authority: New Jersey Supreme Court Advisory Committee on Professional Ethics, via the NJ Courts Supreme Court Committees page

Original opinion text

Reproduced from a full-text mirror of the official opinion for research purposes. The linked official source controls.

93 N.J.L.J. 132, February 26, 1970

OPINION 174

Conflict of Interests Municipal Attorney - Representing Municipal Official

This Committee has been asked for its opinion as to whether it is ethical for a municipal attorney to appear with a municipal official who has been subpoenaed to testify before the State Commission on Investigations on matters involving the municipality. In addition to this question, the inquirer wishes to know whether it makes any difference that the official has indicated he intends to testify fully and not to invoke any constitutional privileges. In either event, he asks whether the municipality may pay his bill.

The attorney for the municipality represents the whole municipality. In so doing he also represents individual officials of the municipality in the performance of their official duties. Accordingly, the municipal attorney is performing one of the duties for which he is employed when he represents a municipal official on municipal matters.

The occasion may arise, however, when the official's actions or testimony indicate that he is not performing his duties on behalf of the municipality or that his individual interests or actions run contrary to the interests of the municipality. In that event the attorney must withdraw from the representation of the official who should seek separate counsel. To avoid difficulties from the start, if it should appear to the attorney that the official may not be willing to testify fully at the hearing or may invoke constitutional privileges, he should be advised to retain his own attorney before the hearing starts. If a conflict develops during the course of the hearing, he should not continue to represent the official but should endeavor to have the hearing adjourned until the official can obtain separate counsel. Since the attorney represents the municipality, there appears to be no reason why it cannot compensate him for representation of the official in the performance of his duties on behalf of the municipality.