Is it a conflict for an attorney to serve as counsel to a planning board when a relative sits on, and chairs, that board?

Plain-English summary

The Committee was asked whether it was ethical for an attorney, employed and paid by the municipality, to represent a planning board when his uncle was a member and chairman of that nine-member board. The attorney's work consisted of giving oral and written advice on the board's rules, procedures, and the statutes and ordinances bearing on applications, and of drafting planning ordinance changes and assisting with a proposed master plan. He also performed personal legal services for his uncle on unrelated matters.

The Committee saw no reason an attorney could not represent the planning board notwithstanding his uncle's membership and chairmanship. In acting for the board, the Committee reasoned, the attorney was not seeking directly or indirectly any discretionary favor on behalf of a client. It added that even if the attorney were to appear on behalf of a private client before the planning board on which his uncle sat as chairman, he would not be guilty of unethical conduct.

The Committee quoted the American Bar Association's Opinion 200 (1940), which addressed a similar question and stated that a lawyer need not refuse employment in a case merely because it may be heard by his father or other relative, and that the responsibility lies with the judge not to sit unless free from bias and its appearance. It cited Drinker, Legal Ethics, and Kremer v. City of Plainfield to the same effect, and concluded that on the stated facts no unethical conduct was involved.

Currency note

This opinion was issued in November 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; the related question of a lawyer's personal-interest conflict is now treated under RPC 1.7. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific requirement mentioned here.

Common questions

Q: Is it a conflict to be planning-board counsel when a relative chairs the board?

A: No. The Committee held there was no unethical conduct, reasoning that in advising the board the attorney sought no discretionary favor for a client.

Q: Could the attorney even appear for a private client before the board his uncle chairs?

A: The Committee said that even doing so would not, by itself, be unethical conduct; following ABA Opinion 200, the duty to step aside rests on the relative who sits in judgment.

Background and rules framework

The opinion rests on the Canons of Professional Ethics and ABA Opinion 200 (1940): a lawyer is not disqualified merely because a relative will hear or decide the matter; the obligation to recuse falls on the relative acting in the adjudicative or board role. The modern analog for a lawyer's own personal-interest conflict is RPC 1.7(a)(2).

Citations and references

Cases:

• Kremer v. City of Plainfield, 101 N.J. Super. 346 (Law Div. 1968)

Other authorities:

• Drinker, Legal Ethics, 72 and 277

Other opinions cited:

• ABA Committee on Professional Ethics and Grievances, Opinion 200 (1940): a lawyer need not decline a case merely because a relative may hear it

See also

• NJ ACPE Op. 141: Health Board Attorney Conflicts

Source

• Landing page: https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp136-1.html

Original opinion text

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

91 N.J.L.J. 749
November 21, 1968

OPINION 136

Attorney for Planning Board Relative of Board Member

Is it ethical for an attorney to represent a planning board when a relative (the attorney's uncle) is a member and chairman of the board?

The attorney is employed by the municipality and paid by the municipality. His function as attorney for the board, composed of nine members, may be divided into two major categories:

A. Oral advice at the meetings and written opinions concerning the rules and procedure of the board and interpreting the general statutes, subdivision, zoning, street, sewer and water ordinances as they relate to a specific application before the board;

B. The preliminary drafting of changes and amendments to municipal ordinances concerning planning which must by law emanate from the planning board. He has also been asked to assist the board in the newly proposed master plan.

The attorney also performs legal services for his uncle on a personal basis, but such matters are totally unrelated to any matters before the board.

There appears to be no reason why an attorney cannot represent a planning board, even though his uncle is a member and chairman of the board. In so acting for the board he is not seeking directly or indirectly any discretionary favor on behalf of a client. Even if an attorney were to appear on behalf of a private client, before the planning board on which his uncle sat as chairman, he would not be guilty of any unethical conduct.

The Committee on Professional Ethics and Grievances of the American Bar Association, in Opinion 200 (1940), in passing upon a similar question, said:

It is not incumbent on a lawyer to refuse to accept employment in a case because it may be heard [in court] by his father or other relative. The responsibility is on the judge not to sit in a case unless he is both free from bias and from the appearance thereof.

To the same effect, see Drinker, Legal Ethics, 72 and 277, and Kremer v. City of Plainfield, 101 N.J. Super. 346 (Law Div. 1968).

It is, therefore, the conclusion of this Committee that on the stated facts, there is no unethical conduct involved.