When a board member gives a board's attorney background information 'in confidence,' can the board later compel the attorney to hand that material over?

Plain-English summary

A board of education member asked the board's attorney to draft a resolution censuring another member and supplied background information, requesting that it be kept confidential because he might not introduce the resolution. The attorney drafted the resolution, it was never introduced, and the board then directed the attorney to give it the draft. The attorney asked whether DR 4-101(B), governing a client's confidences, barred him from complying.

The Committee held that it did not. It distinguished the line of opinions (its Opinion 226 and Opinion 174) saying that a municipal body's attorney represents both the body and its individual members; those opinions also made clear that when a conflict develops between an individual member and the body, the attorney's duty runs to the body he represents. That principle governed here. The member had not consulted the inquirer as his individual attorney but as counsel for the board, to draft a resolution for the board, so he was not in a position to demand secrecy as to matters germane to the board's business.

The Committee concluded that the privilege belongs to the client, the board, and not to the individual member whose interests now conflicted with the board's. It supported that view with N.J.S. 2A:84-20(2), on the unavailability of the privilege as to communications made to an attorney employed by two persons to act for them in common, and with ABA Opinion 202 (1940), which held that a corporation's attorney has a duty to disclose to the board of directors information about wrongful acts of executive officers even when obtained in confidence. Accordingly, the inquirer should comply with the board's request.

Currency note

This opinion was issued in 1976, 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 confidentiality rule then in DR 4-101 is now in RPC 1.6, and the principle that the entity is the client is now stated in RPC 1.13. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance.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: Who is the client when a board's attorney advises individual board members?

A: The opinion treated the board as the client. While board counsel may also represent individual members, when their interests conflict the attorney's duty runs to the board.

Q: Can a board member make the board's attorney keep information from the board?

A: Not as to matters germane to the board's business. The opinion concluded the member, having consulted the attorney as board counsel rather than as personal counsel, could not demand secrecy against the board.

Q: What authority supported releasing the draft to the board?

A: N.J.S. 2A:84-20(2), on communications to an attorney employed by two persons in common, and ABA Opinion 202 (1940), requiring a corporation's attorney to disclose officer wrongdoing to the board.

Background and rules framework

The opinion applied DR 4-101(B), on preserving a client's confidences and secrets, to information a board member supplied to board counsel. In current New Jersey terms, the confidentiality duty is in RPC 1.6 and the entity-as-client framework is in RPC 1.13, which addresses an organization's lawyer's duties when an individual constituent's interests diverge from the organization's.

Citations and references

Rules of Professional Conduct:

• DR 4-101(B) (preservation of confidences and secrets of a client), as in effect 1976; now MR 1.6 / NJ RPC 1.6, with the entity-client principle now in MR 1.13 / NJ RPC 1.13

Statutes:

• N.J.S. 2A:84-20(2) (attorney-client privilege unavailable as to communications to an attorney employed by two persons in common)

Other opinions cited:

• NJ ACPE Opinion 226, 95 N.J.L.J. 54 (1972); Opinion 174, 93 N.J.L.J. 132 (1970)
• ABA Committee on Professional Ethics, Opinion 202 (1940)

See also

• NJ ACPE Op. 353: Conflict of Interest Waiver by a Public Body
• NJ ACPE Op. 586: Disclosure of Fraud to a Former Client Affecting a Current Client
• NJ ACPE Op. 494: Attorney-Mediator's Duty to Report Information to Authorities

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp327-1.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.

99 N.J.L.J. 298, April 8, 1976

OPINION 327

Confidential Communication to School Board Attorney by Board Member

An attorney for a board of education asks if he should comply with the board's request to reveal a confidence reposed in him by a member of the board relating to the board's affairs. The member requested the inquirer to draft a resolution censuring another member, giving the inquirer background information to help draft the resolution. The member requested that such information be kept confidential since he might not introduce the resolution. The inquirer drafted the resolution, but it was not introduced. Now the board has directed the inquirer to give it the draft resolution.

The inquirer is in doubt as to his obligations under DR 4-101(B) relating to the revelation of a client's confidences. He cites our Opinion 226, 95 N.J.L.J. 54 (1972), for the proposition that an attorney for a municipal body represents not only that body, but also its individual members. That opinion, as also does Opinion 174, 93 N.J.L.J. 132 (1970), contains language to that effect in holding that there is no conflict of interest per se in an attorney for a municipal body representing a member of that body individually. Both opinions make clear, however, that a conflict might develop between the individual member and the body, in which case the duty of the attorney is to the body he represents.

This latter principle governs here. The inquirer makes clear that the board member did not consult him as his individual attorney, but rather as the attorney for the board, to have the attorney draft a resolution for the board. The member was not, therefore, in a position to demand secrecy or confidential treatment as to matters germane to the board's business. If the attorney had understood that the member was demanding secrecy or confidential treatment as against the board, he should have made it clear that he could not accept such confidences.

It is our view that the privilege or coincidence belongs to the client, which is the board, and not to the individual member whose interests now apparently conflict with those of the board. As recognized by the inquirer, this view is supported by N.J.S. 2A:84 20(2) relating to the non-availability of the privilege as to communications made to an attorney employed by two persons to act for them in common, where the communication in question relates to the subject matter of the employment. It is also supported by the ABA Comm. on Professional Ethics and Grievances, Opinion 202 (1940). That opinion held that an attorney for a corporation has a duty to disclose to the board of directors information relating to wrongful acts of executive officers, even where the information is obtained in confidence from such officers. In Opinion 202 the following language appears:

Since, however, the board of directors of the trust company is its governing body, we think A, with propriety, may and should make disclosures to the board of directors in order that they may take such action as they deem necessary to protect the trust company from the wrongful acts of its executive officers. Such a disclosure would be to the client itself and not to a third person. (Emphasis added)

Accordingly, we are of the opinion that the inquirer should comply with the board's request