Can a town's 'Corporation Legislative Counsel,' who advises the council on ordinances, handle tax appeals, negligence suits, and other cases against the same municipality?

Plain-English summary

An attorney whose municipal title was "Corporation Legislative Counsel," and whose duties were to advise the Town Council on the legality of ordinances and resolutions before passage and to draft them, asked whether he could handle tax appeals against the municipality, cases before the Board of Adjustment and Municipal Magistrate, and negligence actions against the municipality. He pointed out that the municipality had a Town Attorney and an Assistant Town Attorney who did its general legal work, and that he was never called upon to represent the municipality in litigation.

The Committee examined the ordinance creating the office and found that the inquirer might be called upon to perform duties beyond advising on or drafting ordinances, and that he was an employee of the municipality. Quoting its Opinion 4, the Committee restated that an attorney representing a municipality has the entire municipality as his "client" and should avoid retainers placing him in a position of seeking relief or favor from, or opposing action by, the municipality on behalf of a private client, because success would invite suspicion that his municipal position furthered the private client's cause.

The Committee held that this principle was dispositive: the inquirer may not, while holding the office of Corporation Legislative Counsel, handle cases of any nature against the municipality.

Currency note

This opinion was issued in December 1963, before New Jersey's September 13, 1971 adoption of the Disciplinary Rules (Code of Professional Responsibility), and well before the 1984 Rules of Professional Conduct and all later revisions. It applied Canon 6 of the former Canons of Professional Ethics to a lawyer holding municipal office; such conflicts are now analyzed under RPC 1.7. Treat this page as historical context, not current guidance.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: Could the Corporation Legislative Counsel handle tax appeals or negligence suits against the town?

A: No. The Committee held he may not handle cases of any nature against the municipality while holding the office.

Q: Did it matter that the town had separate attorneys for litigation?

A: No. The Committee found the inquirer was a municipal employee whose client was in effect the entire municipality, so the existence of a Town Attorney did not free him to act against the municipality.

Background and rules framework

The opinion applied Canon 6 of the former Canons of Professional Ethics through the Committee's Opinion 4, treating a lawyer holding municipal office as having the whole municipality as his client. The conflict analysis is now found in RPC 1.7.

Citations and references

Rules of Professional Conduct (as in effect at the time):

• Canon of Professional Ethics 6 (adverse influences and conflicting interests)

Other opinions cited:

• N.J. ACPE Opinion 4, 86 N.J.L.J. 357, 361 (1963), and Opinion 8, 86 N.J.L.J. 718 (1963): a municipal attorney's client is the entire municipality

See also

• NJ ACPE Op. 18: Counsel to a City Housing Authority
• NJ ACPE Op. 37: Board-of-Health Member's Private Practice
• NJ ACPE Op. 67: Municipal Attorney Before Other Agencies

Source

• Landing page: https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp20-1.html

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

86 N.J.L.J. 734
December 26, 1963

OPINION 20

Conflict of Interest
Municipal Attorneys

An attorney for a municipality, who states that his title is "Corporation Legislative Counsel" and whose duties are to advise the Town Council as to the legality of ordinances and resolutions prior to passage and to draft the ordinances and resolutions, inquiries whether he may properly handle tax appeals against the municipality, as well as cases before the Board of Adjustment, the Municipal Magistrate and negligence actions against the municipality. In his letter, the inquirer points out that the municipality has a Town Attorney and an Assistant Town Attorney and that these individuals perform the general legal work of the municipality, the inquirer never being called upon to represent the municipality in litigation of any sort.

The ordinance which creates the office of Corporation Legislative Counsel provides as follows:

The Corporation Legislative Counsel shall be the legal advisor to the Council. He shall advise the Council as to the form and sufficiency of all ordinances and resolutions prior to their passage and shall perform the duties herein before set forth in Article II, Section 2.2, Rule VIII of the Administrative Code of the Town of ... [attend Council meetings and approve ordinances].

It is obvious from reading this that the inquirer may be called upon to perform duties beyond merely advising in connection with ordinances and resolutions or drafting the same. He is an employee of the municipality.

N.J. Advisory Committee on Professional Ethics, Opinion 4, 86 N.J.L.J. 357, 361 (1963), states as follows:

In a broad sense an attorney representing a municipality or any of its agencies has as his "client" the entire municipality, and he should avoid any retainers from others which may place him in a position where he appears to be either seeking relief or favor from the municipality or any of its agencies for a private client or to oppose action by the municipality or its agencies on behalf of a private client. If he did so, it would be inevitable that, if he were successful, the losing litigant, or the public in general, would be troubled by suspicion that his success in the matter was attributable to improprieties and that his position or influence as a municipal attorney might have furthered the cause of the private client.

While an attorney representing two private clients may properly act in exceptional cases with the consent of each, even though a possibility of connecting interests exists, consent is generally available where the public interest is involved. See Drinker, Legal Ethics 120 (1953).

See also, NJ. Advisory Committee on Professional Ethics, Opinion 8, 86 N.J.L.J. 718 (1963).

What was stated in the quoted opinion is applicable to the present inquiry and is dispositive of it. The Committee is of the opinion that the inquirer may not, while holding the office of Corporation Legislative Counsel, handle cases of any nature against the municipality.