How far does serving as county counsel limit a lawyer's private practice before county courts, the surrogate, zoning boards, and a bank he is tied to?

Plain-English summary

County counsel, who advised and at times represented the county sheriff in his official capacity, asked how that role limited his private practice. The Committee worked through four areas.

On the county courts, applying R. 1:15-3(a), county counsel is not precluded from practicing in the county court (except as Opinion 106 reserves criminal matters), because he is not "in the employ or service of" the sheriff; he is employed by, and appointed by, the board of freeholders. The county court is not an "agency" of the county within Opinion 106. On the surrogate and probate division, R. 1:15-3(a) does not preclude county counsel because he is not in the surrogate's employ, though the rule does bar him from criminal, quasi-criminal, or penal matters in the county courts and from probate, estate, or trust matters; the surrogate's office is likewise not an agency of the county. On local zoning, county counsel may represent a private client before a municipal zoning body except where the county or the county planning board is a party (N.J.S.A. 40:55-53, 40:55-53.1); otherwise the county has no interest and his county role carries no influence over autonomous local boards. On the bank, where county counsel chairs the board of a bank holding some but not all county funds in demand accounts controlled by the county treasurer, the Committee saw no conflict, found no need for him to resign the directorship or for his firm to stop representing the bank. Citing Opinion 106, it explained the concern is avoiding any situation in which the public could conclude that, by reason of being county counsel, he obtained for the bank some consideration unavailable to other banks; if this were the sole bank of deposit the conclusion would differ, but because county counsel is not the county's financial officer and has nothing to do with its banking, no invidious inference arises.

Currency note

This opinion was issued in 1972, before New Jersey's adoption of the 2004 revisions to the Rules of Professional Conduct, and predates the 1984 replacement of the Disciplinary Rules by the RPCs. The public-office and conflict principles it applied are now treated under RPC 1.7 and RPC 1.11, and the court rules and statutes it cited (R. 1:15-3, N.J.S.A. 40:55-53) may since have changed. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can county counsel maintain a private practice in the county courts?

A: Under this opinion, yes, except for the criminal matters reserved by Opinion 106 and the criminal and probate matters R. 1:15-3(a) bars; he is not treated as the sheriff's or surrogate's employee.

Q: Can county counsel appear before a municipal zoning board?

A: Yes, for a private client, except where the county or the county planning board is a party to the zoning proceeding; there the Committee found an obvious conflict.

Q: Must county counsel give up a directorship in a bank that holds county funds?

A: No, where the bank holds only some county funds in treasurer-controlled demand accounts and county counsel has nothing to do with county banking; the Committee said the result would differ if it were the sole bank of deposit.

Background and rules framework

The opinion applied the public-office conflict framework of its Opinion 106 (DR 9-101 / DR 8-101 lineage) and R. 1:15-3(a) to county counsel's outside practice and business ties. In current New Jersey terms the analysis falls under RPC 1.7 and RPC 1.11.

Citations and references

Rules of Professional Conduct:

• Public-office conflict principles as in effect 1972; now MR 1.7 / 1.11 and NJ RPC 1.7 / 1.11

Court rules and statutes:

• R. 1:15-3(a) (practice limits for sheriffs, county prosecutors, surrogates)
• N.J.S.A. 40:55-53, 40:55-53.1 (county/planning-board party to zoning proceedings); N.J.S. 2A:5-1, 2A:5-6, 2A:5-7 (surrogate)

Other opinions cited:

• NJ ACPE Opinion 106, 90 N.J.L.J. 97 (1967); and Opinions 88, 168, 202

See also

• NJ ACPE Op. 221: A Tax-Appeals Judge and His Law Firm
• NJ ACPE Op. 236: Law Partners on Opposite Sides of a City Tax Fight
• NJ ACPE Op. 308: A Freeholder's Attorney Opposing the County Prosecutor

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp229-1.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.

95 N.J.L.J. 81, February 3, 1972

OPINION 229

Conflict of Interest County Counsel's Private Practice

An inquiry has been made containing the following questions.

1. The county sheriff does not have a separate legal adviser and the inquirer, as county counsel, is called upon to advise the sheriff and has represented the sheriff in a litigation against him in his official capacity.

(a) Is the inquirer precluded from practicing in the county court or any other court?

(b) If the sheriff had his own attorney other than the county counsel would the "official county family" relationship be such as to preclude the county counsel from practicing in the county court or any other court?

(c) Is the county court or any other court an "agency" of the county within the meaning of section (d) of the inquiry involved in Advisory Committee on Professional Ethics, Opinion 106, 90 N.J.L.J. 97 (1967), so as to preclude the county counsel from practicing in the county court or any other court?

To answer these questions, reference must be made to R. 1:15-3(a).

Sheriffs and County Prosecutors. An attorney who is a sheriff or county prosecutor, or is in the employ or service of such an official shall not practice on behalf of any defendant in any criminal quasi-criminal or penal matter, whether judicial or administrative in nature. Nor if he is a sheriff of any county or in the sheriff's employ shall he practice in any court in that county.

(a) If county counsel is called upon to advise and represent the sheriff in his official capacity, he is not precluded from practicing in the county court or any other court except as set forth in Opinion 106 as to criminal matters, since he is not a person who "is in the employ or service of such an official" i.e., the sheriff. The county counsel is in the employ of the board of freeholders as an administrative matter, and is appointed by it. The basic principles limiting the practice of county counsel are set forth in this Committee's Opinions 88, 89 N.J.L.J. 49 (1966); 106, 90 N.J.L.J. 97 (1967); 168, 93 N.J.L.J. (1970); 202, 94 N.J.L.J. 309 (1971).

(b) What we said in (a) disposes of the question raised here.

(c) The county, or any other court is not an "agency" of the county within the meaning of section (d) of the inquiry involved in Opinion 106.

1(d).

Surrogates. An attorney who is a surrogate or deputy surrogate in any county, or who is in the employ of any such official shall not practice in any criminal, quasi-criminal or penal matter, whether judicial or administrative in nature, in that county, nor in the probate division of any county court or in any estate or trust matter in any court.

(a) A careful reading of this rule would indicate that the county counsel is not precluded from practicing before the surrogate or the probate division of the county court, since he is not a person "who is in the employ of such official," i.e., the surrogate. As was stated in answer to question 1(a) herein, county counsel is precluded by R. 1:15-3(a) from practicing in the courts of the county in "any criminal, quasi-criminal or penal matter." Nor may he practice "in the probate division of any county court or in any estate or trust matter in any court." But, these prohibitions are obviously directed only to any surrogate or deputy who may be a lawyer or to lawyers who are employed "by such official," i.e., the surrogate.

(b) What we have said in answer to question 2(a) above disposes of the question raised here.

(c) The surrogate's office is not an agency of the county within the meaning of section (d) of our Opinion 106, supra. The surrogate is a statutory officer elected by the people of his county (N.J.S. 2A:5-1). Any vacancy in the office of surrogate, or if a surrogate after being duly elected is unable to qualify, is filled by the Governor (N.J.S. 2A:5-6,7).

(a) County counsel is not precluded from representing a private client before a municipal zoning body, except in cases where the county or the county planning board is a party to the zoning proceeding under N.J.S.A. 40:55-53 or 40:55-53.1. Otherwise, the county has no interest in local zoning and a county counsel ought not to be prevented from representing private clients before local municipal zoning boards, except in the case of a hearing under N.J.S.A. 40:55-53. His representation of the county can hardly be said to carry with it any influence over local autonomous zoning bodies.

(b) Even if the county planning board is separately represented, county counsel cannot represent a client before a municipal zoning body where the county is involved or has an interest. The county counsel would obviously have a conflict in such a situation.

(a) We see no conflict of interest in a situation where the county counsel is chairman of the board of directors of a bank in which the county deposits some, but not all, of its funds. Presumably, these are demand accounts, the funds in which can be withdrawn or deposited at will by the county. Control over the funds is in the county treasurer, subject to disposition by the board of free holders. The county counsel has nothing to do with this phase of county activity.

(b) For the reasons above stated, there is no need for the county counsel to resign as a director of such bank.

(c) Nor is there a need for his firm to request that the bank no longer list it as its attorneys.

(d) There is also no reason why the county counsel or his firm should not continue to represent the bank, which the inquirer states is also represented by other counsel.

As we pointed out in Opinion 106 and other opinions, the problem is one of avoiding a situation where the public could conclude that, by reason of being county counsel the inquirer was able to obtain for the bank some consideration not available to other banks in the county. If this were the sole bank of deposit for county funds and other banks assisted in the county, our conclusions would be different because then the inference would be inescapable that the deposit came to this bank because of the influence of county counsel. Since the county counsel is not the financial officer of the county, and in fact has nothing to do with the county's banking activities, we do not think that the deposit of funds in this bank, along with others in the county, could give rise to any invidious inference because he is chairman of the board of directors of the bank and his firm is counsel for it.