Can a lawyer be the planning board attorney when a partner in his firm is the attorney for the same municipality?

Plain-English summary

The inquirer asked whether it would be unethical for him to accept appointment as attorney for a municipal planning board where one of the partners in his firm is the attorney for the same municipality. He was employed by the firm, received a salary, and shared in other fees, and believed any conflict was minimal.

The Committee recalled Opinion 67, which held a municipal attorney cannot serve as planning board attorney of the same municipality because the two bodies may hold conflicting views, and Opinion 117, which reaffirmed that holding. It concluded that accepting the planning board office would be unethical, because it had previously held (Opinion 74) that even where an attorney merely shares office space with another attorney it would be improper to handle matters that may conflict with his office associate. The associate's role therefore did not avoid the conflict.

Currency note

This opinion was issued in March 1969, before New Jersey's September 13, 1971 adoption of the Disciplinary Rules (Code of Professional Responsibility), so the Committee was applying the Canons of Professional Ethics and its own prior opinions. It also predates the 1984 Rules of Professional Conduct and all later revisions. The conflict principles it applied, including imputation among associated lawyers, are now treated under RPC 1.7 and RPC 1.10. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.

Common questions

Q: Can a firm associate serve as planning board counsel if a partner is the municipal attorney?

A: No. The Committee held it unethical, because the conflict barring one lawyer from holding both the municipal-attorney and planning-board roles extends to a firm associate.

Q: Does sharing only office space, rather than a partnership, avoid the conflict?

A: No. The Committee relied on Opinion 74, which held it improper even for an attorney who merely shares office space to handle matters that may conflict with his office associate.

Background and rules framework

The opinion applied the Canons of Professional Ethics and the Committee's municipal-conflict line (Opinions 67, 117, 74), extending the municipal-attorney/planning-board disqualification to a firm associate. In current New Jersey terms the analysis falls under RPC 1.7, with imputation among associated lawyers under RPC 1.10.

Citations and references

Other opinions cited:

• NJ ACPE Opinion 67, 88 N.J.L.J. 81 (1965)
• NJ ACPE Opinion 117, 90 N.J.L.J. 745 (1967)
• NJ ACPE Opinion 74, 88 N.J.L.J. 357 (1965)

See also

• NJ ACPE Op. 161: An Office Associate of the Municipal Attorney Representing a Developer
• NJ ACPE Op. 164: One Attorney Representing Both the Zoning and Planning Boards
• NJ ACPE Op. 199: Representing Both the Zoning and Planning Boards

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp149-1.html
• Issuing authority: New Jersey Supreme Court Advisory Committee on Professional Ethics, via the NJ Courts Supreme Court Committees page

Original opinion text

Reproduced from a full-text mirror of the official opinion for research purposes. The linked official source controls.

92 N.J.L.J. 185, March 20, 1969

OPINION 149

Associate of Municipal Attorney Planning Board

An attorney has made inquiry to ascertain if it would be unethical for him to accept appointment as attorney for a municipal planning board where one of the partners in the firm with which he is associated is the attorney for the same municipality. The inquirer is employed by the firm, receives a salary and shares in other fees.

In our Opinion 67, 88 N.J.L.J. 81 (1965), we held that a municipal attorney cannot serve as attorney for a planning board of the same municipality because the two bodies may entertain conflicting points of view. In our Opinion 117, 90 N.J.L.J. 745 (1967), we reaffirmed this holding where a municipal attorney inquired whether he could serve as advisor to the borough's planning board in preparation of its master plan.

The inquirer is of the opinion that the conflict of interest, if any, is minimal and therefore believes that he should not be disqualified from accepting office.

It is our opinion that to accept the office would be unethical since we have held previously that even where an attorney shares office space with another attorney it would be improper to handle matters which may conflict with his office associate, Opinion 74, 88 N.J.L.J. 357 (1965).