If a lawyer accepts an unpaid county appointment (planning board, park commission, county college), how is it decided which client matters the firm must then decline?

Plain-English summary

A partner in a medium-size firm with a heavy real estate practice asked whether he could accept appointment as an unpaid member of a County Planning Board, County Park Commission, or County College, noting that the firm regularly applies on behalf of clients for subdivision and site-plan approvals and necessarily communicates with various county agencies. The Committee framed the real question not as whether the lawyer could accept the appointment, but as what matters the firm might thereafter be obliged to decline given the partner's position on the public body, and stated it was impossible to forecast the endless variety of possible conflicts.

The Committee balanced the value of attorneys contributing their experience, skill, and training to public service (Opinions 102 and 395) against the fact that public service necessarily precludes the attorney from accepting matters where, in the words of Perillo v. Advisory Committee on Professional Ethics, 83 N.J. 366 (1980), a person generally familiar with the affairs of the body could reasonably believe the attorney would be subject to and hindered by a professional conflict. It noted it had written many opinions applying Perillo to specific situations (Opinions 485, 489, and 490). It declined the inquirer's request to assign varying weights to factors such as the scope or prominence of the public service, or whether it was compensated, refusing to develop a formula approach, except to note that whether the position carries compensation is entirely irrelevant.

In summary, the Committee held that whenever a lawyer accepts a public position, paid or not, he runs the risk of being obliged to decline a matter later by virtue of that post, and that it is his burden to decide, at the time a matter is offered, whether accepting it would violate the Perillo standard. The attorney may profitably consult the Committee's opinions on specific fact situations, but in the first instance he must decide whether to accept the appointment, and the resulting practice restrictions can only be dealt with case by case as they arise.

Currency note

This opinion was issued before New Jersey's adoption of the 2004 revisions to the Rules of Professional Conduct, and it applies the Supreme Court's Perillo standard for public-service conflicts, the concern now reflected in RPC 1.7. (The Justia mirror does not carry a New Jersey Law Journal dateline for this opinion; the issuance date is therefore omitted. The opinion sits in the Committee's early-1980s sequence.) 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: Could the lawyer accept the unpaid county appointment at all?

A: Yes. The opinion treated acceptance as permissible; the real issue was which client matters the firm would then have to decline.

Q: Did it matter that the appointment was unpaid?

A: No. The opinion stated the question of whether the appointive position carries compensation is entirely irrelevant.

Q: Did the Committee give a formula for which matters to refuse?

A: No. The Committee declined to develop a formula and referred the lawyer to the Perillo standard, leaving him to decide case by case, as each matter is offered, whether accepting it would create a disqualifying conflict.

Background and rules framework

The opinion applies the public-service conflict standard of Perillo v. Advisory Committee on Professional Ethics, 83 N.J. 366 (1980), the concern now addressed by RPC 1.7. Rather than weighing factors like the prominence or compensation of the office, the Committee leaves disqualification to a case-by-case application of Perillo as specific matters arise.

Citations and references

Rules of Professional Conduct:

• MR 1.7 / NJ RPC 1.7 (concurrent conflicts of interest)

Cases:

• Perillo v. Advisory Committee on Professional Ethics, 83 N.J. 366 (1980) (standard for conflicts arising from a lawyer's public service)

Other opinions cited:

• NJ ACPE Opinions 102 and 395 (value of attorneys' public service)
• NJ ACPE Opinions 485, 489, and 490 (Perillo applied to county college trustees, assistant county counsel, and county tax board members)

See also

• NJ ACPE Op. 530: Assistant County Counsel Serving as Mayor
• NJ ACPE Op. 572: Planning-Board Member in Litigation Against the Constituent Municipality
• NJ ACPE Op. 547: Sewerage Authority Counsel Whose Partner Sues the Authority

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp519-1.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.

OPINION 519

Conflict of Interest - Application of Perillo Guidelines to Unpaid County Appointments

The inquirer, a partner in a medium size law firm asks whether he may accept appointment as an unpaid member of either the County Planning Board, County Park Commission or the County College. The firm is engaged in general practice with heavy emphasis in the field of real estate and, in this connection, the firm regularly finds it necessary to apply on behalf of its clients for subdivision approvals, site plan approvals and the like in various municipalities and there is necessary communication with various county agencies.

The real problem is not whether the inquirer may accept appointment to any of these governmental entities, but rather what matters the firm may thereafter be obliged to decline in view of the position of the partner on the public body. It is obviously impossible for the Advisory Committee on Professional Ethics to forecast and rule upon the endless variety of possible conflicts. We have frequently noted the fact that it is desirable that attorneys contribute their "experience, skill, and training" for the benefit of the public by accepting public service. See, for example Opinion 102, 90 N.J.L.J. 1 (1967) and Opinion 395, 101 N.J.L.J. 417 (1978). On the other side of the scale is the fact that serving the public necessarily precludes the attorney from accepting matters where "... a person generally familiar with the affairs of the [municipality] could reasonably believe that an attorney in such a position would be subject to and hindered by a professional conflict of interest." Perillo v. Advisory Committee on Professional Ethics, 83 N.J. 366 (1980).

We have written a great many opinions in response to particular inquiries in this area; see for example, Opinion 485, 107 N.J.L.J. 574 (1981) dealing with a County College Trustee practicing before County agencies; Opinion 489, 108 N.J.L.J. 525 (1981) dealing with Assistant County Counsel also acting as Special Counsel to a municipality within the county; Opinion 490, 108 N.J.L.J. 525 (1981) dealing with restrictions upon the practice of those who serve as county tax board members. In every one of these opinions the Committee has been guided by the principles laid down by our Supreme Court in the Perillo case. This inquiry asks that the Committee, in effect, assign varying weights to factors which might be considered, such as the scope of the public service, whether narrow or broad, and whether the service is compensated. Also, whether the role occupied is of such degree of prominence of the governmental structure as to give rise to "an appearance of conflict." We are not disposed to interpret the Perillo decision by an endeavor to develop any such formula approach to these problems. Except to note that the question of whether the appointive position carries with it any compensation is entirely irrelevant, we think it is our duty to refer this inquirer to the standards set forth by the Supreme Court in the Perillo case.

In summary, whenever a lawyer accepts a public position in a community, whether or not paid for such service, it is obvious that he runs the risk of being obliged to decline a matter tendered to him in the future by virtue of his occupancy of the public post. It is his burden to decide whether acceptance of the matter tendered would be violative of the standards laid down in the Perillo decision at the time that the matter is offered to him. In addressing these questions, the attorney may profitably refer to opinions of this Committee which has in the past and will in the future consider inquiries in specific fact situations, but in the first instance the attorney himself must decide whether he should accept a proffered appointment to a position of public trust and confidence. The restrictions upon his practice which necessarily inhere in the circumstances can only be dealt with on a case by case basis as they arise.