May a borough's municipal attorney also serve as legal adviser to that borough's planning board in preparing a master plan?

Plain-English summary

A municipal attorney was asked by his borough's planning board to serve as its legal adviser in preparing a master plan, and he asked whether he could serve in that dual capacity. He cited Schear v. Elizabeth, 41 N.J. 321 (1964), and the Committee's Opinion 67, which had stated that a municipal attorney cannot serve as attorney for any board or agency of the same municipality where there is or may be a conflict of interest.

The Committee observed that a master plan could lead the planning board to recommend amending zoning ordinances, increasing the board's powers, and redistributing power between the board and the governing body. Some of those items were matters of policy belonging to the public body, not the attorney. But where the prospect of policy differences between the planning board and the governing body was not so remote as to be discounted, an attorney serving both bodies could find himself in an embarrassing position, and the recommendations could raise legal questions whose answers varied with each body's responsibilities and functions.

The Committee concluded that the general principles proscribing dual capacities for municipal attorneys, as stated in Opinion 67, applied here. It allowed that the borough attorney might give ad hoc assistance on basic, noncontroversial legal points (such as statutory or constitutional provisions on the board's powers), but said that if his services were requested on controversial issues he could not serve in the dual capacity.

Currency note

This opinion was issued in November 1967, before New Jersey's September 13, 1971 adoption of the Disciplinary Rules (Code of Professional Responsibility), and well before the 1984 Rules of Professional Conduct and all later revisions. It applied the Committee's own Opinion 67 and general conflict-of-interest principles drawn from the Canons of Professional Ethics. The subject is now treated under RPC 1.7 (concurrent conflicts) and RPC 1.11 (former and current government officers and employees). Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific requirement mentioned here.

Common questions

Q: Can a borough attorney also be the planning board's legal adviser?

A: Not for the controversial questions a master plan presents. The Committee held that the general principles barring a municipal attorney from dual municipal roles applied, so he could not serve both the governing body and the planning board where their policy positions might diverge.

Q: Is there anything the borough attorney could still do for the planning board?

A: Yes. The Committee said he might give ad hoc assistance on basic, noncontroversial legal matters, such as the statutory or constitutional provisions defining the board's powers, in his capacity as borough attorney.

Q: What made the master-plan work a conflict?

A: The plan could lead the board to recommend changes (to zoning, to the board's powers, to the allocation of authority) on which the planning board and the governing body might take different policy positions, putting an attorney who served both in an embarrassing position.

Background and rules framework

The opinion applied the conflict-of-interest principle the Committee had set out in Opinion 67: a municipal attorney cannot represent two municipal bodies of the same municipality where their interests or policy positions may diverge. In current New Jersey terms, the analysis maps to RPC 1.7 (concurrent conflicts of interest) and RPC 1.11, which addresses the special conflict rules for lawyers serving in government.

Citations and references

Cases:

• Schear v. Elizabeth, 41 N.J. 321 (1964): cited by the inquirer on dual municipal representation

Other opinions cited:

• NJ ACPE Opinion 67, 88 N.J.L.J. 81 (1965): a municipal attorney cannot serve a municipal board where a conflict of interest may arise

See also

• NJ ACPE Op. 164: Representing Both Zoning and Planning Boards
• NJ ACPE Op. 169: Planning Board Attorney Partner of Mayor's Father
• NJ ACPE Op. 149: Associate of Municipal Attorney; Planning Board

Source

• Landing page: https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp117-1.html

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

90 N.J.L.J. 745
November 16, 1967

OPINION 117

Municipal Attorney
Adviser to Planning Board

A municipal attorney has been asked by his borough's planning board to serve as its legal adviser in the preparation of a master plan. He inquires whether he may serve in this dual capacity with propriety and cites Schear v. Elizabeth, 41 N.J. 321 (1964), and this Committee's Opinion 67, 88 N.J.L.J. 81 (1965), as possibly, but not necessarily, proscribing such dual representation. Our Opinion 67 sets forth in general terms that a municipal attorney cannot serve as attorney for any board or agency of the same municipality if there is or may be a conflict of interest in a particular situation.

The inquirer states that the planning board in considering a master plan may submit recommendations for "amending zoning ordinances, increasing the powers of the Planning Board" and the "distribution of power between the planning Board and the governing body." Such items in the first instance involve matters of policy which are in the province of the public body, not the attorney. However, where the prospect of differences of opinion as to policy between the planning board and governing body is not so remote as to be discounted, an attorney who attempts to serve both bodies may well find himself in an embarrassing position. Further, the recommendations along the lines anticipated by the inquirer may well raise legal questions to which the answers may vary depending on the policy and approach of the agency and the governing body because of the differences in their responsibilities and functions. Where legal opinions are basic, noncontroversial matters such as statutory or constitutional provisions pertaining to the powers and functions of the planning board are needed, the planning board might well be justified in seeking ad hoc assistance from the inquirer in his capacity as borough attorney. Obviously, if his legal services were requested regarding controversial issues the inquirer could not serve in a dual capacity.

We therefore conclude that the general principles proscribing dual capacities for municipal attorneys as stated in our Opinion 67 are applicable here.