After defending school officials in suits a teachers' association brought, can the same lawyer then sue that association for malicious prosecution and defamation on the officials' behalf?

Plain-English summary

The inquirer was attorney for a local board of education and had represented the board and the superintendent in roughly eight proceedings brought by a teachers' association in federal court, before the Commissioner of Education, the Public Employment Relations Commission, and the Superior Court. All were dismissed except a still-pending federal suit, and the Superior Court judge had labeled the charges "baseless."

Counsel asked whether he could now represent the individual board members and the superintendent in malicious-prosecution and defamation actions against the association, and whether he could also represent a former board member whom the association had alleged to be the "source" of the information behind its suits. A county prosecutor's investigation of that former member had produced a full sworn statement and found no basis for criminal action, and disclosed no reason to believe the former member was in fact the source. The inquirer was concerned about DR 5-105(A), which requires declining employment that is likely to adversely affect the lawyer's independent judgment for an existing client.

The Committee found nothing in the facts to restrict counsel from bringing the contemplated actions. It concluded that his representation of the board members and superintendent in the prior litigation was not in any way in conflict with the action now to be brought, and that DR 5-105(A) was not applicable.

Currency note

This opinion was issued in 1981, 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 conflict rule it applied (DR 5-105(A)) now corresponds broadly to RPC 1.7. Treat this page as historical context, not current guidance.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: Could the lawyer sue the teachers' association after defending the officials against it?

A: Yes. The opinion concluded that the prior defense did not conflict with bringing malicious-prosecution and defamation claims for the same officials against the association.

Q: Could he also represent the former board member alleged to be the association's "source"?

A: The opinion found no basis to restrict it, noting the prosecutor's investigation found no reason to believe the former member was the source and the court had called the underlying charges baseless.

Background and rules framework

The opinion applied DR 5-105(A), which required a lawyer to decline employment where independent professional judgment for a client would likely be adversely affected. In current New Jersey terms the analysis maps onto RPC 1.7 (concurrent conflicts of interest). The Committee treated the new affirmative claims as aligned with, not adverse to, the lawyer's existing clients, so no conflict arose.

Citations and references

Rules of Professional Conduct:

• MR 1.7 / NJ RPC 1.7 (concurrent conflicts of interest); decided under former DR 5-105(A)

See also

• NJ ACPE Op. 489: Assistant County Counsel as Special Counsel to a Municipality
• NJ ACPE Op. 484: Union Counsel Serving a Labor-Management Committee on Comp Claims

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp483-1.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.

107 N.J.L.J. 549, June 11, 1981

OPINION 483

Conflict of Interest Representing School Officials Sued by Teachers' Association Then Representing Officials in Civil Action Against Association

The inquirer is attorney for a local board of education. He has represented the board and the superintendent of schools in various litigations brought by a teachers' association. Some eight different proceedings were brought by this association against the board, its individual members, the board secretary and the superintendent of schools. The actions were in the United States District Court before the Commissioner of Education, the New Jersey Public Employment Relations Commission and the Superior Court of New Jersey. In all instances, the actions were dismissed with the exception of the federal court suit which is still pending but in which a motion to dismiss has been made. The dismissal in the Superior Court was appealed to the Appellate Division which affirmed the dismissal.

Counsel now inquires whether he can represent the individual members of the board of education and the superintendent of schools in actions for malicious prosecution and defamation against the teachers' association. He also asks whether, in such litigation, he may represent a former member of the board who, in the course of the litigation was alleged by the teachers' association to be the "source" of the information relied upon by the association bringing its various actions. In the course of the investigation of the charges brought by the association, the county prosecutor obtained from the "source" a full and complete sworn statement and concluded that there was no basis for any criminal action. Originally in view of the allegations concerning this "source," the inquirer represented only the superintendent and the individual members of the board but not the "source" who, at that point, had independent representation. The investigation disclosed no reason to believe that this former member was in fact the "source" of the adverse information. The Superior Court judge, in dismissing the suit before him, labeled the charges "baseless."

The inquirer seeks guidance as to whether, in view of the foregoing, he is precluded from representing the board members including the so-called "source" and the superintendent in the contemplated litigation. He is concerned with the provisions of DR 5-105(A) which states: (A) A lawyer shall decline proffered employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment, except to the extent permitted under DR 5-105(C).

We find nothing in the facts presented to restrict counsel from bringing the actions contemplated. His representation of the board members and the superintendent in the prior litigation is not in any way in conflict with the action now to be brought and the above-cited rule is not, in our opinion, applicable.