Can an attorney who is an independent-contractor county counsel on specific civil matters also serve as a municipal public defender and appear in other municipal courts in the same county?

Plain-English summary

The inquiry was whether an attorney who has a written contract with a county to perform professional services as an independent contractor, at a fixed annual compensation without fringe benefits, may also act as a Municipal Public Defender in a municipality within that county, and may represent clients before the county's municipal courts other than the court where he is the public defender. The inquirer had obtained letters from both the County Counsel and the City Solicitor stating they saw no conflict, and the contract specified that he "shall be an independent contractor and not a county employee."

The Committee drew on its prior opinions. In Opinion 489, 108 N.J.L.J. 525 (1981), it had found no conflict where an Assistant County Counsel defended a municipality in a civil-rights matter in which the county was not a defendant, citing Opinion 466, 106 N.J.L.J. 518 (1980) (special labor counsel to a county could bring private litigation against municipalities in the same county). In Opinion 501, 110 N.J.L.J. 342 (1981), it had held that an attorney could serve as both Assistant County Counsel and Municipal Prosecutor of a town in the same county.

Applying those principles, the Committee concluded that the inquirer is not part of the county official family, is assigned specific civil cases, and is not a county employee under his contract. As public defender he represents only individual clients with no adverse relationship to his county employment, since the county is not a party to those proceedings, his county work is civil, and his public-defender work is criminal. Because he does not represent any municipality or the county in his private criminal practice before municipal courts (except the court where he is public defender), the Committee found the arrangement "not to be objectionable."

Currency note

This opinion was issued in 1985, before New Jersey's adoption of the 2004 revisions to the Rules of Professional Conduct (which abolished the freestanding "appearance of impropriety" standard that informed the Committee's official-family analysis). 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 Treat this page as historical context, not current guidance.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: Does serving a county as an attorney bar a lawyer from also being a municipal public defender in that county?

A: Not where the county engagement is as an independent contractor on specific civil cases. The opinion found the lawyer was not part of the county's official family and the county was not a party to his public-defender work, so it saw no objection.

Q: What made the independent-contractor status matter?

A: The contract specified he "shall be an independent contractor and not a county employee," and he was assigned only specific civil cases. The opinion treated that as keeping him outside the county's official family.

Q: Could he appear in the county's other municipal courts?

A: Yes, except the municipal court where he served as public defender. The opinion found no objection because he did not represent the county or any municipality in that private criminal practice.

Background and rules framework

The opinion applies New Jersey's conflict-of-interest and appearance-of-impropriety doctrine to a lawyer holding multiple public-facing roles, turning on whether the lawyer is part of a public body's "official family." It builds on the Committee's Opinions 466, 489, and 501, which had permitted overlapping county and municipal roles where the county was not adverse to the lawyer's other matters.

Citations and references

Other opinions cited:

• ACPE Opinion 466, 106 N.J.L.J. 518 (1980) (special labor counsel to a county may sue municipalities in the same county for private clients)
• ACPE Opinion 489, 108 N.J.L.J. 525 (1981) (Assistant County Counsel defending a municipality where county was not a defendant)
• ACPE Opinion 501, 110 N.J.L.J. 342 (1981) (attorney serving as both Assistant County Counsel and Municipal Prosecutor)

See also

• NJ ACPE Op. 590: Township Solicitor and County Welfare Board (overruling Op. 568)
• NJ ACPE Op. 622: County Counsel Appearing Before Local Boards
• NJ ACPE Op. 601: County College Counsel Serving as a Bank Director

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp573-1.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.

116 N.J.L.J. 271, August 22, 1985

OPINION 573

Conflict of Interest - Contract Attorney for County, Also Serving as a Municipal Public Defender

The inquiry posed in this matter is whether an attorney who has a written contract with a county to perform professional services as an independent contractor at a fixed annual compensation without any fringe benefits provided by the county, can also act as Municipal Public Defender in a municipality within that county and whether he can represent clients before municipal courts in the county, other than the court in which he will be the public defender.

The Inquirer has obtained from the County Counsel a letter in which the latter assures him that no conflict exists and points out in a letter that the county makes it a practice to engage lawyers as independent contractors to perform such services for the county such as labor relations, health-related matters as well as zoning and planning.

The inquirer also submits a letter from the Solicitor of the City in which the inquirer is the Municipal Public Defender in which the former advises one of the city commissioners that he sees no conflict between the inquirer's position as a contractor with the county and that of Municipal Public Defender. He points out that, in the latter capacity, the Inquirer represents indigent defendants and not the municipality and hence, his fidelity is to the defendants and not to the municipality.

The inquirer submits a copy of the contract with the county in which it is clear that it is a special services contract and contains the specific statement that he "shall be an independent contractor and not a county employee".

In Opinion 489, 108 N.J.L.J. 525 (1981) the inquiry was whether it was proper for an attorney to undertake the defense of a municipality, its mayor and council, in the county where he was employed as Assistant County Counsel. The case in which the attorney was to be engaged was for a denial of civil rights and the county was not a defendant. We held that there was no conflict involved, citing two Supreme Court cases and our earlier Opinion 466, 106 N.J.L.J. 518 (1980). In that opinion, we said that an attorney who was special labor counsel to a county could bring litigation for private clients against municipalities in the same county.

In Opinion 501, 110 N.J.L.J. 342, (1981) we were asked, among other things, whether it was proper for an attorney to hold the position of Assistant County Counsel while also serving as Municipal Prosecutor of a town within the same county. We held that the two positions were not in conflict and that the attorney might serve in both capacities.

It is clear in this case that the inquirer is not a part of the County official family and is assigned specific civil cases. He is not, as the contract states, "a county employee". In his capacity as public defender, he does not represent anyone but individual clients and these have no adverse relationship to his employment by the county since the latter is not a party to the proceedings in any way, and his employment by the county is in civil cases whereas his employment as the public defender is solely in criminal cases.

In view of the fact that he is not representing any municipality or the county in his private criminal practice before municipal courts located within the county, except the one in which he is Public Defender. We find this not to be objectionable.