(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in
the interests of brevity, portions of any opinion may not have been summarized).
Argued October 9, 2001 -- Decided January 16, 2002
LONG, J., writing for a unanimous Court.
The Board of Chosen Freeholders of Warren County (Board) on December 20, 2000, appointed John J.
Coyle, Jr., to the position of county counsel for a statutory three-year term. On January 1, 2001, a new Board
rescinded Coyle's appointment and replaced him with another lawyer. The Board claimed that it had the right to
discharge Coyle under the Rules of Professional Conduct (Model Rules or RPCs), specifically RPC 1.16, that
requires a lawyer to withdraw if he is discharged by the client. Coyle claims that, absent cause, he is entitled to
serve out his term of office prescribed by the Legislature in N.J.S.A. 40A:9-43.
The Board is made up of three members, each elected to a three-year term, and only one member elected
each year. At the time of the general election in November 2000, the Board had as its members two Democrats and
one Republican. One of the Democrats lost her bid for reelection to Michael Doherty, a Republican, signaling a
change in the Board's majority party come January 1, 2001 when Doherty was to take office. On December 20,
2000, the then-current Board passed a resolution appointing Coyle as Warren County counsel for the statutory three-
year term.
The one Republican Board member, DiMaio, along with the newly-elected Doherty, who was present at the
December 20th meeting, opposed the appointment of Coyle and indicated to Coyle that he lacked the trust and
confidence of the new Republican majority. DiMaio and Doherty asked Coyle to decline the appointment and
indicated that if he accepted it, he would be asked to resign when the Board reorganized in January. Coyle rejected
the request and signed an employment agreement with the County. On January 1, 2001, the new Board rescinded
the employment agreement with Coyle and enacted a resolution appointing John J. Bell as County Counsel.
On January 3, 2001, Coyle filed a complaint in lieu of prerogative writs, seeking a judgment declaring him
to be County Counsel. Because the Board did not allege that there was cause for Coyle's dismissal, there was no
factual matter for the trial court to resolve. Instead, the court framed the issue as a legal one: whether RPC 1.16 or
N.J.S.A. 40A:9-43 governs the dismissal of county counsel. The trial court ruled that the Appellate Division
decision in Pillsbury v. Board of Chosen Freeholders is dispositive and, therefore, the statutory term controls. The
trial court emphasized the importance of the public nature of the Office of County Counsel and the Legislature's
intention that there be continuity in that office, given that composition of the Board could change annually. The
court reinstated Coyle with back pay, and rescinded the Board's appointment of Bell.
The Board appealed to the Appellate Division, which reversed, holding that RPC 1.16 permitted the Board
to terminate Coyle as County Counsel without cause. The Appellate Division essentially held that the case
specifically implicated the ethical obligations of attorneys, thus triggering the court's interest in the vindication of
its rules, and that there was no basis for distinguishing between county counsel and private counsel in respect of the
applicability of RPC 1.16.
The Supreme Court granted certification.
HELD: RPC 1.16 was never intended to apply to public counsel with statutory terms.
1. This matter has been rendered moot in view of Coyle's recent judicial appointment. Nevertheless, the Court
briefly addresses the legal issues presented. (P. 4)
2. In 1971, the Court adopted the Disciplinary Rules modeled after the American Bar Association (ABA) Code of
Professional Responsibility. New Jersey's DR 2-110(B)(4) tracked the language of the identical ABA rule
providing that an attorney must withdraw legal representation if discharged by the client. That language remained
in effect until the Disciplinary Rules were replaced in 1984. In the interim, the Appellate Division decided
Pillsbury. In that case, the court distinguished the lawyer-client relationship in the public sector from the same
relationship in the private sector and held that the statutory term, and not DR 2-110(B)(4), governs the dismissal of
a county counsel. (Pp. 5-7)
3. In 1979, a committee of the American Bar Foundation published the Annotated Code of Professional
Responsibility, which included commentary stating that there is an exception to DR 2-110(B)(4) for public counsel
whose office was created by the legislature and whose term of office was fixed by statute. The comment further
provided that, unless good cause exists, such counsel could not be removed from office before the end of his or her
term. This comment demonstrates the ABF's recognition of the distinction between public and private sector
representation enunciated in Pillsbury. Thereafter, the ABA Commission on Evaluation of Professional Standards
(the Kutak Commission) published a Proposed Final Draft of the Model Rules of Professional Conduct. In that
draft, the Kutak Commission reiterated the exception found by the ABF. In July 1982, the Court appointed the
Debevoise Committee to review the ABA's Model Rules of Professional Conduct and to recommend whether to
adopt those rules in New Jersey. The text of former DR 2-110 (B)(4) is now found in RPC 1.16. The introduction
to the RPCs refers the reader to the official ABA comments and commentary contained in the Debevoise Report for
“assistance in interpreting” the RPCs. Reference to the public counsel exception can be found in those comments.
(Pp. 7-10)
4. From the history of RPC 1.16, it is clear that there was a common understanding on the part of the drafters of the
Model Rules that RPC 1.16 does not govern public attorneys for whom the Legislature has established a statutory
term of office and has declared the conditions on which discharge can occur. Given the history of RPC 1.16 and
Pillsbury's interpretation of an identical disciplinary rule, in addition to the Court's faithful reenactment of that rule,
without disavowal of Pillsbury, leads to the conclusion that RPC 1.16 was never intended to apply to public counsel
with statutory terms. (Pp. 10)
5. Nothing in this opinion changes the fundamental standards governing resolution of an actual conflict between the
RPCs and an action of another branch of government. Such a conflict will be resolved by an assessment of the
governmental purpose underlying the legislative or executive action and the nature and extent of its encroachment
on judicial prerogatives and interests. Such an assessment is unnecessary here as RPC 1.16 is inapplicable on the
facts presented. (Pp. 10-12)
6. The issue involving the timing of Coyle's appointment as County Counsel need not be addressed since it has
been rendered moot by Coyle's judicial appointment. (P. 12)
Judgment of the Appellate Division is REVERSED.
CHIEF JUSTICE PORITZ and JUSTICES STEIN, COLEMAN, VERNIERO, LAVECCHIA, and
ZAZZALI join in JUSTICE LONG'S opinion.
SUPREME COURT OF NEW JERSEY
A-
110 September Term 2000
JOHN J. COYLE, JR.,
Plaintiff-Appellant,
v.
THE BOARD OF CHOSEN
FREEHOLDERS OF WARREN COUNTY,
JOHN DIMAIO, individually,
and MICHAEL DOHERTY,
individually,
Defendants-Respondents.
Argued October 9, 2001 -- Decided January 16, 2002
On certification to the Superior Court,
Appellate Division, whose opinion is
reported at
340 N.J. Super. 277 (2001).
Michael J. Perrucci argued the cause for
appellant (Fischbein, Badillo, Wagner &
Harding, attorneys; Maureen A. Coyle, on the
brief).
John H. Dorsey argued the cause for
respondents (Dorsey and Fisher, attorneys).
John P. Bender, Assistant Attorney General,
submitted a letter in lieu of brief on behalf
of amicus curiae, Attorney General of New
Jersey (John J. Farmer, Jr., Attorney General,
attorney).
The opinion of the Court was delivered by
LONG, J.
The Board of Chosen Freeholders of Warren County (Board)
appointed John J. Coyle, Jr. to the position of county counsel for
a three year term on December 20, 2000. On January 1, 2001, a new
Board rescinded Coyle's appointment and replaced him with Joseph J.
Bell. The Board claimed the right to discharge Coyle under the
Rules of Professional Conduct (Model Rules or RPCs) that require a
lawyer to withdraw if he is discharged by the client. RPC 1.16.
Coyle counters that, absent cause, he is entitled to serve out the
term of office prescribed by the Legislature in N.J.S.A. 40A:9-43.
The case requires us to analyze the interplay of the cited rule and
statute.
I
The case arose out of the following facts. The Board is made
up of three members, each elected to a three year term on a
staggered basis; i.e., one member is elected each year. At the
time of the general election in November of 2000, the Board
consisted of two Democrats, James S. DeBosh and Ann Stone, and one
Republican, John DiMaio. Stone lost her bid for reelection to
Michael J. Doherty, a Republican, signaling a change in the Board's
majority. Doherty was to take office on January 1, 2001. On
December 20, 2000, the then-current Board passed a resolution
appointing Coyle as Warren County counsel, an office with a three
year term according to N.J.S.A. 40A:9-43.
The one Republican on the Board, DiMaio, along with newly
elected Doherty, who was present at the meeting, opposed the
appointment and indicated to Coyle that he lacked the trust and
confidence of the new Republican majority. DiMaio and Doherty
asked Coyle to forego the appointment and indicated that if he did
accept, he would be asked to resign upon the Board's reorganization
in January. Coyle rejected the request and signed an employment
agreement with the County. On January 1, 2001, upon reorganizing
with its new member, the Board rescinded the employment agreement
with Coyle and enacted a resolution appointing Bell as Warren
County Counsel for a three year statutory term.
On January 3, 2001, Coyle filed a complaint in lieu of
prerogative writs, seeking a judgment declaring him to be county
counsel. Because the Board did not allege that there was cause for
Coyle's dismissal, no factual matter was presented for resolution.
The trial court framed the issue as a legal one regarding whether
RPC 1.16 or N.J.S.A. 40A:9-43 ultimately governs the dismissal of
county counsel. The trial court ruled that the Appellate Division
decision in Pillsbury v. Board of Chosen Freeholders,
140 N.J.
Super. 410 (App. Div. 1976), is dispositive of the issue and
determined that the statutory term trumps RPC 1.l6. In so doing,
the court emphasized the importance of the public nature of the
Office of County Counsel and the Legislature's intention that there
be continuity in that office, given that the composition of the
Board could change annually. The court reinstated Coyle with back
pay, and rescinded the Board's appointment of Bell.
The Board appealed and, prior to argument, the Attorney
General accepted the Appellate Division's invitation to participate
as amicus curiae to address the legal and public policy issues
raised by the case. Subsequently, the Appellate Division reversed,
holding that RPC 1.16 permitted the Board to terminate Coyle as
County Counsel without cause. Coyle v. Board of Chosen
Freeholders,
340 N.J. Super. 277, 294 (App. Div. 2001). In
essence, the Appellate Division held that the case specifically
implicated the ethical obligations of attorneys, thus triggering
the court's interest in the vindication of its rules, and that
there was no basis for distinguishing between county counsel and
private counsel regarding the applicability of RPC 1.16.
Coyle has since been appointed to the Superior Court, thus
rendering the actual controversy in the case moot. We choose
nevertheless to briefly address the legal issue presented. Zirger
v. General Accident Ins. Co.,
144 N.J. 327, 330 (1996) (resolving
abstract legal issue after appeal had been rendered moot “where the
underlying legal issue is one of substantial importance, likely to
recur but capable of evading review”) (citations omitted).
The parties to this appeal maintain absolute positions with respect to the statute and the rule. Coyle claims that the case is controlled by the statute; the Board asserts that the RPCs are determinative. They argue that this case presents a direct confrontation between the public policy expressed by the Legislature in creating a term of office for County Counsel and the Supreme Court's constitutional authority to control the practice of law through the RPCs. The Attorney General stakes out a middle ground, invoking our decision in Knight v. City of Margate, 86 N.J. 374, 392 (1981), as requiring a “realistic and fraternal” evaluation of the comparative judicial and legislative interests. The Attorney General concludes that such an evaluation results in the statute being given primacy.
Before grappling with those issues, what is required is a determination of whether the cited authorities are, in fact, applicable at all in these circumstances. Obviously, by its very terms, N.J.S.A. 40A:9-43 is implicated. The relevance of RPC 1.16 is more problematic. A brief history of the Rule is instructive.
From September 1948, when the Rules Governing the Courts of New Jersey were first officially adopted, until September 1971, the Canons of Professional Ethics (Canons) governed the conduct of attorneys in this State. Canon 44 discussed the propriety of and conditions to an attorney's withdrawal from a relationship with his or her client, but was entirely silent regarding a client's entitlement to discharge his or her attorney. The text of Canon 44 remained unchanged until 1971.
In that year, the Supreme Court adopted the Disciplinary Rules (DRs) modeled after the American Bar Association Code of Professional Responsibility. New Jersey's DR 2-110(B)(4) tracked the language of the ABA's DR 2-110(B)(4) and provided, in pertinent part:
A lawyer representing a client before a tribunal, with its permission if required by its rules, shall withdraw from employment, and a lawyer representing a client in other matters shall withdraw from employment, if:
. . . .
(4) He is discharged by his client.
The language of DR 2-110 remained in effect until the Disciplinary Rules were replaced in 1984. In the interim, the Appellate Division decided Pillsbury v. Board of Chosen Freeholders, 140 N.J. Super. 410 (1976). Among other things, the court in Pillsbury distinguished the lawyer-client relationship in the public sector from the private lawyer-client relationship, and held that the statutory term and not DR 2-110(B)(4) governs the dismissal of a county counsel.
Three years later, a committee of the American Bar Foundation (ABF) published the Annotated Code of Professional Responsibility (1979), which included the following comment:
DR 2-110(B)(4) states that the lawyer must withdraw if he or she is discharged by the client. . . . An exception has been made for public counsel (county counsel) whose office was created by the legislature and whose term of office was fixed by statute. Unless good cause exists, such counsel may not be discharged or removed from office before the end of his or her term. Pillsbury v. Board of Chosen Freeholders, 133 N.J. Super. 526, 337 A.2d 632 (1975), aff'd per curiam, 140 N.J. Super. 410, 356 A.2d 424 (1976).
By that annotation, the ABF committee recognized the distinction between public and private sector representation enunciated in Pillsbury.
Thereafter, the ABA Commission on Evaluation of Professional Standards (Kutak Commission) published a Proposed Final Draft of the Model Rules of Professional Conduct. In that report, the text of DR 2-110(C)(3) provided that a lawyer “shall withdraw from the representation of a client if: . . . (3) the lawyer is discharged.” Kutak Commission, Model Rules of Professional Conduct (Alternative Draft),May 30, 1981, at 58. The “Legal Background” section of the Kutak Commission's notes reiterated the observation of the ABF committee:
The general rule that a client has discretion to discharge an attorney with or without cause does not apply to public positions, such as county attorney, where term of office and cause for discharge are controlled by statute. E.g., Pillsbury v. Board of Chosen Freeholders, 337 A.2d 632 (N.J. 1975), aff'd per curiam, 356 A.2d 424 (N.J. 1976).
The following year, the Kutak Commission published the Final Draft of the RPCs, as amended in August 1982, with extensive changes and renumbering. Model Rules of Professional Conduct (Final Draft) (1982) (1982 Kutak Report), reprinted in A.B.A.J., Nov. 1982 (pullout supplement). The relevant portion of the ABA's DR 2-110 became Model Rule 1.16(a)(3), which provides that a lawyer “shall withdraw from the representation of a client if: . . . (3) the lawyer is discharged.” 1982 Kutak Report at 17.
In July 1982, the Supreme Court of New Jersey appointed a Committee on the Model Rules of Professional Conduct (Debevoise Committee) to review the ABA's Model Rules and to recommend to the Court whether those rules should be adopted in New Jersey. Report of the New Jersey Supreme Court Committee on the Model Rules of Professional Conduct, June 24, 1983 (Debevoise Report), at 1, reprinted in Michels, New Jersey Attorney Ethics, at 1073 (Gann 2000); also reprinted in N.J.L.J., July 28, 1983 (pullout supplement). Model Rule 1.16 was among several “residual” rules that the Debevoise Committee “[a]pproved without discussion, and thus recommended . . . for adoption.” Debevoise Report at 23; reprinted in Michels, supra, at 1115.
Effective September 10, 1984, the Supreme Court adopted an amended and supplemented version of the Model Rules, including RPC 1.16, to replace the Disciplinary Rules. The text of New Jersey's former DR 2-110(B)(4) can now be found in RPC 1.16(a)(3). The introduction to the RPCs in the New Jersey Court Rules refers readers to the official ABA Comments and commentary contained in the Debevoise Report for “assistance in interpreting these rules.” Pressler, Current N.J. Court Rules, at 436 (Gann 2002). Reference to a public counsel exception to RPC 1.16(a)(3) again can be found in the “Legal Background” section of the ABA's Annotated Model Rules of Professional Conduct (1999):
The Rule recognizing a client's absolute right to discharge a lawyer is inapplicable to government lawyers, including publicly elected officials, such as states' attorneys. The terms of employment and grounds for discharge in such positions are controlled by statute. See, e.g., Santa Clara County Counsel Attorneys Ass'n v. Woodside, 869 P.2d 1142 (Cal. 1994) (lawyers for county agency had statutory right to sue agency for violations of labor law); Walsh v. State, 689 A.2d 131 (N.J. 1997) (employment relationship between public defender's office and assistant public defenders was determined by statute), rev'g on Judge Skillman's dissent, 674 A.2d 988, 994 (N.J. 1996).
It would then be fair to say that there was a common
understanding on the part of the drafters of the Model Rules that
RPC 1.16(a)(3) does not govern public attorneys with respect to
whom the Legislature has established a statutory term of office and
declared the conditions on which discharge may occur. When it
adopted our rules, the Court obviously was aware of that gloss on
the Model Rules and, more importantly, of Pillsbury, a case that
had been decided eight years previously.
There is a long-standing canon of statutory construction that
presumes that the Legislature is knowledgeable regarding the
judicial interpretation of its enactments. State v. Burford,
163 N.J. 16, 20 (2000). When a statute has received “contemporaneous
and practical interpretation,” and the statute is thereafter
amended without any change in the interpreted language, the
judicial construction “is regarded as presumptively the correct
interpretation of the law.” Ford Motor Co. v. New Jersey Dept. of
Labor & Indus.,
7 N.J. Super. 30, 38 (App. Div.) (citing 2
Sutherland, Statutory Construction, § 5109 (3rd ed. 1943)), aff'd,
5 N.J. 494 (1950); see also Lemke v. Bailey,
41 N.J. 295, 301
(1963); Harper v. New Jersey Mfrs. Cas. Ins. Co.,
1 N.J. 93, 98-99
(1948). Moreover, courts will not impute a legislative intention
to alter an established judicial interpretation absent a “clear
manifestation” of such intent. State v. Dalglish,
86 N.J. 503, 512
(1981). Those presumptions and rules of statutory construction
apply equally to the judicial construction of judicially adopted
rules. State v. Vigilante,
194 N.J. Super. 560, 563 (Law Div.
1983) (citing Diodato v. Camden County Park Comm'n,
136 N.J. Super. 324, 327 (App. Div. 1975)).
Given the history of RPC 1.16 and Pillsbury's interpretation
of an identical disciplinary rule, the Court's faithful re-
enactment of that rule, without a disavowal of Pillsbury, leads us
to conclude that RPC 1.16(a)(3) never was intended to apply to
public counsel with statutory terms, and we so hold.
Nothing in this opinion should be viewed as altering, in any
way, the fundamental standards governing resolution of an actual
conflict between the RPCs and an initiative of another branch of
government. As we indicated in Knight v. City of Margate, supra,
such a conflict will be resolved by an assessment of the
governmental purpose underlying the legislative or executive action
and the nature and extent of its encroachment upon judicial
prerogatives and interests. 86 N.J. at 392. There was no need for
such an assessment here because RPC 1.16(a)(3) is inapplicable on
the facts presented.
We note finally that this case presented an additional issue
involving the timing of Coyle's appointment. We see no reason to
grapple with it now that the case has been rendered moot by Coyle's
judicial appointment.
The judgment of the Appellate Division is reversed.
CHIEF JUSTICE PORITZ and JUSTICES STEIN, COLEMAN, VERNIERO,
LaVECCHIA, and ZAZZALI join in JUSTICE LONG's opinion.
NO. A-110 SEPTEMBER TERM 2000
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
JOHN J. COYLE, JR.,
Plaintiff-Appellant,
v.
THE BOARD OF CHOSEN
FREEHOLDERS OF WARREN
COUNTY, JOHN DIMAIO, individually,
and MICHAEL DOHERTY, individually,
Defendants-Respondents.
DECIDED January 16, 2002
Chief Justice Poritz PRESIDING
OPINION BY Justice Long
CONCURRING OPINION BY
DISSENTING OPINION BY