Petition for Review of Opinion 552 of Advisory Committee on Professional Ethics, Matter of

• Decision Date: 09 April 1986
• Citation: 102 N.J. 194,507 A.2d 233
• Parties: In the Matter of the PETITION FOR REVIEW OF OPINION 552 OF the ADVISORY COMMITTEE ON PROFESSIONAL ETHICS.
• Court: New Jersey Supreme Court

Page 194

102 N.J. 194

507 A.2d 233

In the Matter of the PETITION FOR REVIEW OF OPINION 552 OF

the ADVISORY COMMITTEE ON PROFESSIONAL ETHICS.

Supreme Court of New Jersey.

Argued Nov. 19, 1985.

Decided April 9, 1986.

Michael R. Clancy, Deputy Atty. Gen., for appellant Atty. Gen. of New Jersey (Irwin I. Kimmelman, Atty. Gen., attorney; James J. Ciancia, Asst. Atty. Gen., of counsel).

David H. Ben-Asher, Essex County Counsel, for appellant pro se (David H. Ben-Asher, attorney; Janice Falivena, Asst. County Counsel, on briefs).

John C. Pidgeon, First Asst. Corp. Counsel, for appellant City of Newark (Rosalind Lubetsky Bressler, Corp. Counsel, attorney).

Michael J. Hogan, Burlington County Solicitor, for appellant pro se.

John F. Neary, for respondent Advisory Committee on Professional Ethics (Connell, Foley & Ceiser, attorneys; John F. Neary and Theodore W. Geiser, of counsel).

Fred G. Stickel, III, General Counsel, submitted a letter in lieu of brief on behalf of amicus curiae, N.J. Institute of Mun. Attys.

The opinion of the Court was delivered by

HANDLER, J.

The issue in this case is whether a municipal attorney may represent both the municipality and individual officials or employees of that municipality when all have been sued as co-defendants in a civil rights action under 42 U.S.C. § 1983. The Supreme Court's Advisory Committee on Professional Ethics (ACPE or Committee) ruled in Opinion 552 that it is never proper for an attorney simultaneously to represent a governmental entity and any of its officials or employees when they are co-defendants in such a civil rights action. We granted motions by interested parties for a meritorious review of Opinion 552. For the reasons stated in this opinion, we modify the determination of the ACPE.

I.

Resolution of the ethics issues addressed by Opinion 552, 115 N.J.L.J. 96 (1985), requires an overview of 42 U.S.C. § 1983 and the kinds of law suits that may be brought under this enactment. The statute provides [E]very person, who under color of any statute, ordinance, regulation, custom or usage of any state or territory or the District of Columbia, subjects or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity or other proper proceeding for redress.

The rights protected under this enactment are principally (1) due-process rights, (2) equal-protection rights, (3) privileges and immunities of citizens, (4) rights owing their existence to federal functions, and (5) rights created by federal statutes. C.J. Antineau, Federal Civil Rights (1971).

While § 1983 refers to the culpable party as "every person," local government entities, as well as their individual officials and employees, can be held accountable under § 1983. Monell v. New York City Dept of Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611, 635 (1978). To recover from an official or employee, it is enough to show that such a person acting under color of state law caused the deprivation of a federal right. Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). In contrast, local governmental bodies are liable under § 1983 only for wrongful actions that were taken to implement or execute a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body. Monell v. New York City Dept of Soc. Servs., supra. Significantly, local government bodies are not liable under § 1983 on a respondeat superior theory for every deprivation inflicted under color of state law by a local official. Id. 436 U.S. at 691, 98 S.Ct. at 2036, 56 L.Ed.2d at 636. It is evident therefore that under varying circumstances an aggrieved person can sue either a local government official, or the government entity that employs the official, or both, and different remedial relief will be available in terms of the identities of the parties-defendant. When both an entity and official are named as defendants, a conflict of interest between them may arise. This actual or potential conflict of interest poses the ethical issue that is the crux of Opinion 552.

In a § 1983 suit against both the governmental entity and individual government officials, the governmental entity, in an effort to shift liability, may claim that the assertedly wrongful conduct of the individuals was unauthorized and outside the scope of the employment. Conversely, in his or her defense, an employee-defendant may claim that the alleged offending conduct was taken pursuant to an official governmental policy or directive and that the governmental entity is the party properly responsible and ultimately liable. Thus, under the defenses asserted or available, one party-defendant may seek to avoid or lessen its exposure at the expense of the other.

The Committee in Opinion 552 recognized that where a governmental official or employee has been named as a co-defendant in a § 1983 civil rights action against a municipality, the attorney who undertakes representation of both defendants may be in a situation of potential conflict. Indeed, the Committee was of the view that a potential conflict of interests was almost invariably present in these situations, and therefore such potential conflicts could be overcome effectively only by an absolute prohibition against multiple representations. The Committee considered that an alternative approach consisting of an ad hoc avoidance of conflicts of interest on an individual, case-by-case basis was too uncertain and inconsistent to be the basis for a satisfactory and workable rule. Ibid.

We agree with the Committee that there is undoubtedly a concern here for potential conflicts. However in view of the fact that in certain § 1983 actions no conflict of interest problems will ever exist, or that in others the cause may be summarily disposed without factual controversy as to the respective roles of the defendants, an absolute rule requiring separate counsel at the initial pleading stages is not required to adhere to traditional ethical precepts. We believe that where a potential conflict of interests may be present, it is not necessary to abandon the ethics guidelines of the Rules of Professional Conduct, which control generally the responsibility of attorneys confronted with conflicts of interests in the representation of clients.

II.

The overbreadth of an absolute bar against multiple-client representation in virtually all § 1983 civil rights actions can be illustrated by several prototypical situations. The overinclusiveness of the restriction is most apparent in those circumstances where a governmental officer or employee is charged by the complaint solely in an "official capacity," as opposed to when such an individual is sued in his "personal capacity."

Personal-capacity suits seek to impose personal liability upon a governmental official for actions he takes under color of state law. See, e.g., Scheuer v. Rhodes, 416 U.S. 232, 237-238, 40 L.Ed.2d 90, 94 S.Ct. 1683 [1686-87] 71 Ohio Ops.2d 474 (1974). Official-capacity suits, in contrast, "generally represent only another way of pleading an action against an entity of which an officer is an agent." Monell v. New York City Dept. of Social Services, 436 U.S. 658, 690, n. 55, 98 S.Ct. 2018 [2035, n. 55] 56 L.Ed.2d 611 (1978). As long as the government entity receives notice of an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity. Brandon v. Holt, 469 U.S. at ----, 105 S.Ct. 873, 83 L.Ed.2d 878. It is not a suit against the official personally, for the real party interest is the entity. Thus, while an award of damages against an official in his personal capacity can be executed only against the official's personal assets, a plaintiff seeking to recover on a damages judgment in an official-capacity suit must look to the government entity itself [Kentucky v. Graham, 473 U.S. ----, ----, 105 S.Ct. 3099, 3105, 87 L.Ed.2d 114, 121 (1985).]

On its face, Opinion 552 would require independent counsel for a municipal official even where a § 1983 complaint alleges no more than that the employee-defendant took actions pursuant to an official policy of the municipality. In other situations, even when pleadings are susceptible of suggesting a cause of action against the individual official or employee in a "personal capacity," it may otherwise appear, or the government body may concede, that the § 1983 action against the individual is of the "official capacity" variety, i.e., that the official or employee acted in furtherance of official policy. In these contexts, no conflict of interests exists. The official is not the "real" defendant in terms of actual responsibility and ultimate liability. See Brandon v. Holt, 469 U.S. 464, 105 S.Ct. 873, 83 L.Ed.2d 878 (1985); Goodwin v. Circuit Court of St. Louis County, 741 F.2d 1087, 1088-89 (8th Cir.) cert. denied 469 U.S. 828, 105 S.Ct. 112, 83 L.Ed.2d 55 (1984); Familias Unidas v. Briscoe, 619 F.2d 391, 403 (5th Cir.1980); Shadid v. Jackson, 521 F.Supp. 87, 91 (E.D.Tex.1981). In such circumstances, there is realistically no possibility for a conflict of interests in the joint representation of the governmental agency and the individual defendant. Both parties will presumably raise the identical defense, namely, that the actions effectuated a governmental policy but no wrongful deprivation of federal rights occurred. See Aetna Casualty and Sur. Co. v. United States, 570 F.2d 1197, 1200 (4th Cir.), cert. denied 439 U.S. 821, 99 S.Ct. 87, 58 L.Ed.2d 113 (1978); Sherrod v. Berry, 589 F.Supp. 433, 438 (N.D.Ill.1984).

Moreover, even in personal-capacity suits there may be situations in which no conflict of interests can arise. See Dunton v. County of Suffolk, 580 F.Supp. 974 (E.D.N.Y.1983). In ca...