Can the same attorney serve as counsel to both a municipality's planning board and its board of adjustment?

Plain-English summary

An attorney serving as counsel to a municipal planning board asked whether he could also accept the position of attorney for the board of adjustment of the same municipality. The Committee surveyed its earlier opinions: Opinion 67 (a municipal attorney cannot serve a board or agency of the same municipality if there is or may be a conflict in a particular situation); Opinion 112 (a municipal planning attorney could not even represent his own wife in objecting to a variance, given how often planning boards, boards of adjustment, and governing bodies disagree on variances); Opinion 117 (a municipal attorney could not advise the planning board on a master plan where the prospect of policy differences with the governing body was not remote); and Opinion 91 (a zoning board attorney could not appear for the municipal body in a zoning appeal where the municipality had reversed the board of adjustment). It also noted the Supreme Court's criticism of the potential for conflict in representing distinct but independent municipal agencies in Schear v. Elizabeth, Dolan v. DeCapua, and Wilson v. Long Branch.

The attorney explained that as counsel to the board of adjustment he gives legal opinions and rulings on applications before it, and that many such applications also go before the planning board for site-plan or parking approvals, sometimes before and sometimes after the board of adjustment hears them.

In that factual context, where each agency refers matters to the other and discord is likely, the Committee held there would be a conflict of interest if the same attorney advised both boards on a matter where they differ. It therefore concluded it was improper for the attorney to represent both the zoning board and the planning board. The Committee added that it was not its function to decide whether the two offices were legally incompatible, a determination only the courts could make.

Currency note

This opinion was issued in April 1968, 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 Canons of Professional Ethics through the Committee's line of municipal-conflict opinions. Conflicts of this kind are now analyzed under RPC 1.7 and, for government lawyers, RPC 1.11. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific requirement mentioned here.

Common questions

Q: Why can't one lawyer advise both the planning board and the board of adjustment?

A: The Committee held that because the two agencies refer matters to each other and often disagree, advising both on a matter where they differ would be a conflict of interest.

Q: Did the Committee decide the two jobs are legally incompatible?

A: No. It said deciding whether the offices are incompatible as a matter of law is for the courts, not the Committee.

Background and rules framework

The opinion applies the Committee's settled rule (Opinions 67, 91, 112, 117) that a lawyer may not serve two municipal agencies whose interests may diverge in a particular matter, reinforced by the Supreme Court's concern in Schear, Dolan, and Wilson about conflicts among distinct municipal bodies. In current New Jersey terms, this is a concurrent-conflict question under RPC 1.7, with RPC 1.11 governing government lawyers.

Citations and references

Cases:

• Schear v. Elizabeth, 41 N.J. 321 (1964)
• Dolan v. DeCapua, 16 N.J. 599 (1954)
• Wilson v. Long Branch, 27 N.J. 360 (1958)

Other opinions cited:

• NJ ACPE Opinion 67, 88 N.J.L.J. 81 (1965)
• NJ ACPE Opinion 91, 89 N.J.L.J. 248 (1966)
• NJ ACPE Opinion 112, 90 N.J.L.J. 365 (1967)
• NJ ACPE Opinion 117, 90 N.J.L.J. 745 (1967)

See also

• NJ ACPE Op. 136: Planning Board Counsel Whose Relative Sits on the Board
• NJ ACPE Op. 141: Health Board Attorney Conflicts

Source

• Landing page: https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp127-1.html

Original opinion text

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

91 N.J.L.J. 262
April 25, 1968

OPINION 127

Representing Zoning and Planning Boards

An attorney presently serving as attorney for a municipal planning board inquires whether he may accept the position of attorney for the board of adjustment of the same municipality.

In Opinion 67, 88 N.J.L.J. 81 (1965), we said 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." (Emphasis added)

In Opinion 112, 90 N.J.L.J. 365 (1967), we pointed out that a municipal planning attorney could not even represent his wife in personally objecting to the granting of a variance. We said:

...our law reports are replete with cases where planning boards, boards of adjustment and governing bodies have not always been in accord on request for variances. In this case, if the board of adjustment granted a variance, the matter might be referred back to the planning board for action, in which case the inquirer obviously would have a conflict of interest. Or, if a subdivision were required, planning board approval would have to be obtained under N.J.S.A. 40:55-1.24.

In Opinion 117, 90 N.J.L.J. 745 (1967), we said that a municipal attorney could not serve as legal adviser to the municipality's planning board in the preparation of a master plan 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, ... ."

In Opinion 91, 89 N.J.L.J. 248 (1966), we said that a zoning board attorney could not without violation of the Canons of Professional Ethics appear for the municipal body in a zoning appeal where the municipality had reversed the decision of the board of adjustment.

The potential danger of conflict inherent in representing distinct but independent municipal agencies has been criticized by our Supreme Court, Schear v. Elizabeth, 41 N.J. 321 (1964); Dolan v. DeCapua, 16 N.J. 599 (1954); Wilson v. Long Branch, 27 N.J. 360 (1958).

The attorney states in his inquiry:

As attorney to the Board of Adjustment, I am required to give certain legal opinions and legal rulings on matters that are pending before the Board or on applications that are being heard before the Board. Many of these applications have already appeared before the Planning Board and many of these are referred to the Planning Board for such things as site plan approval, parking lay-out approval and the general approval of the Planning Board or as required by the Zoning Ordinance of the municipality.

In a real sense, then, many of the matters that are heard before the Board of Adjustment are also presented to the Planning Board sometimes before they come to the Board of Adjustment and sometimes after they have been to the Board of Adjustment.

In this factual context, where each agency is referring matters to the other and where the likelihood of discord is present, there would be a conflict of interest if the same attorney were to advise both boards on a matter wherein they differ.

It is therefore our opinion that it is improper for the attorney in this situation to represent both the zoning board and the planning board. It is not the function of this Committee to decide whether there is incompatibility between the two offices as a matter of law. Such determination can only be made by our courts.