May municipal counsel defend individual municipal officials sued for willful civil-rights violations under 42 U.S.C. 1983, and may one lawyer defend several of them?

Plain-English summary

The Committee was asked whether municipal counsel could represent any or all municipal officials charged with intentional, willful, and conspiratorial violations of civil and constitutional rights under 42 U.S.C. 1983 and 1985, where the municipality itself was not a party to the suit. The Committee concluded that municipal counsel should not undertake such representation.

It drew on Opinion 526, 113 N.J.L.J. 383 (1984), in which it held that where both the municipality and its officials were joined as defendants on charges of willful misrepresentation and fraud, municipal counsel could represent the municipality but should not defend the individual officials, and that special counsel should be engaged for the municipality where day-to-day contact with the defending officials was substantial enough to hazard the free, independent exercise of municipal counsel's judgment for the municipality. The Committee reasoned that upon a successful defense of a Section 1983 action, and especially where punitive damages were involved, the question of indemnification for costs and punitive damages would be put in issue between the official and the municipality; because municipal counsel must be free to exercise independent judgment in advising and defending the municipality on the indemnification claim, that counsel could not properly represent the official against whom the action was brought.

The Committee further reasoned that where several officials were sued, the potential for conflict increased because of differences in the individual acts that might be proved: some defendants might become liable for punitive damages and others might not, so independent counsel could not represent more than a single such defendant. For these reasons, the Committee held that each municipal official should have separate, independent counsel in a Section 1983 action.

Currency note

This opinion was issued in 1984, before New Jersey's adoption of the 2004 revisions to the Rules of Professional Conduct. The concurrent-conflict analysis it applies now lives in RPC 1.7. 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 Treat this page as historical context, not current guidance.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 municipal counsel defend an official sued for willful civil-rights violations?

A: No. The opinion concluded municipal counsel should not undertake such a defense, because the municipality's potential indemnification claim against the official made their interests adverse.

Q: Why did the municipality's indemnification role matter?

A: Per the opinion, on a successful defense (especially with punitive damages) indemnification for costs and punitive damages would be at issue between the official and the municipality, and municipal counsel had to stay free to advise the municipality on that claim.

Q: Could one lawyer defend several of the officials?

A: No. The opinion concluded that because the officials' individual acts differed and some might face punitive damages while others might not, each official should have separate independent counsel.

Citations and references

Rules of Professional Conduct:

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

Statutes:

• 42 U.S.C. 1983 and 42 U.S.C. 1985 (civil-rights claims against officials)

Other opinions cited:

• NJ ACPE Opinion 526 (municipal counsel may represent the municipality but not individual officials jointly charged; special counsel where contact hazards independent judgment)

See also

• NJ ACPE Op. 605: Public Entities and Private Co-Defendants in Multiparty Suits
• NJ ACPE Op. 588: Multiple Representation of Public Entities in an Environmental Suit
• NJ ACPE Op. 567: City Attorney on a Legal-Services Board Defending the City Against Its Clients

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp534-1.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.

114 N.J.L.J. 53, July 19, 1984

OPINION 534

Conflict of Interest - Municipal Counsel Representing One or More Officials on Charge of Willful Violation of Civil Rights Under 42 U.S.C. 1983

We are asked whether or not municipal counsel may represent any or all municipal officials on charges of intentional, willful, and conspiratorial violations of civil and constitutional rights under 42 U.S.C. 1983 and 42 U.S.C. 1985, where the municipality is not a party to the suit. It is our opinion that municipal counsel should not undertake such representation.

In our Opinion 526, 113 N.J.L.J. 383 (1984), we held that where both the municipality and its officials were joined as defendants on charges of willful misrepresentations and fraud, the municipal counsel may represent the municipality, but ought not to undertake the defense of the individual officials. We also held that special counsel should be engaged to defend the municipality when the day to day contact of counsel with the defending officials is substantial and of such nature as to hazard the free independent exercise of municipal counsel's judgment on behalf of the municipality.

Upon the successful defense of a Section 1983 action against a public official, the question arises: Should the municipality indemnify?

In the event the Section 1983 action is successful and involves punitive damages, the matter of indemnification for costs and punitive damages is put in issue between the official and the municipality. Since the municipal attorney must be free to exercise his independent judgment in advising and defending the municipality on the indemnification claim, that municipal counsel cannot properly represent the municipal official against whom the action was brought.

Where there may be several officials against whom such action is brought, the potential for conflict increases by reason of differences in the individual acts that may be proved. Some defendants may become liable for punitive damages and others may not. Hence, independent counsel may not represent more than a single such defendant.

For the above reasons, we hold that each municipal official should have separate independent counsel in a Section 1983 action.