June 2026
Plaintiffs often attempt to establish municipal liability by targeting command-level decision-makers personally.
As a result, chiefs routinely become primary defendants in major civil rights litigation filed in state or federal court.
Why Municipal Representation Creates a Conflict
The most misunderstood issue is the assumption that because the municipality and the chief are aligned defendants, one attorney can adequately represent both parties.
In practice, that is frequently impossible.
Municipal attorneys represent the interests of the municipality as a corporate governmental entity. Their obligation is to protect the municipality itself, including limiting municipal exposure, protecting elected officials, preserving insurance coverage positions, and reducing financial liability.
A chief personally named as a defendant may have interests that diverge significantly from those of the municipality.
For example, a municipality may attempt to argue:
• the chief acted outside the scope of authority;
• the alleged conduct violated policy;
• the chief independently made decisions not directed by municipal leadership;
• operational failures were attributable solely to police administration; or
• the municipality lacked knowledge of certain conduct or conditions.
Those arguments may help the municipality reduce liability, but they can directly harm the chief’ s personal defense.
Conversely, the chief’ s defense may require demonstrating that:
• municipal funding decisions created operational deficiencies;
• staffing levels approved by elected officials were inadequate;
• municipal leadership was aware of conditions now alleged as negligent; or
• policies were constrained by budgetary or political limitations outside the chief’ s control.
At that point, the municipality and the chief no longer share identical legal interests.
That divergence creates a classic conflict of interest under professional responsibility rules governing attorneys in New Jersey.
The New Jersey Supreme Court addressed this issue directly in Dunton v. County of Suffolk, a case frequently cited nationwide in police defense litigation. The court recognized that conflicts arise when municipal and individual officer defenses diverge, particularly where the municipality may seek to distance itself from the conduct of the officer or supervisor to avoid liability.
Likewise, New Jersey courts have acknowledged the necessity of independent representation where governmental and employee interests conflict. In In re Opinion No. 415, the Court recognized that attorneys representing public entities cannot simultaneously represent public employees where a substantial risk exists that defenses may diverge.
“ New Jersey courts have acknowledged the necessity of independent representation where governmental and employee interests conflict.”
An attorney cannot ethically represent two clients whose defenses may become adverse to one another. Even where conflicts are not immediately apparent at the beginning of litigation, experienced defense counsel recognize that conflicts frequently emerge during discovery, expert review, depositions, or settlement negotiations.
Accordingly, when a chief is personally exposed to liability independent of the municipality, separate counsel becomes necessary to protect the chief’ s individual legal interests.
New Jersey Police Chief Magazine / 9