Can a part-time assistant municipal attorney represent a builder client operating in the municipality if he discloses the relationship and steps aside from the variance hearing?

Plain-English summary

The inquirer was a part-time assistant municipal attorney whose duties included serving as attorney for the zoning board of adjustment. He had represented one of his regular private clients, a builder, in a contract to purchase land in his municipality that required a use variance. Another attorney handled the builder's variance appeal, but if the variance issued, the assistant municipal attorney would resume representing the builder in the title search and mortgage financing. He had disclosed all of this to the zoning board, withdrew from the variance hearing, and did not participate in the board's deliberations. He asked whether this was a conflict of interest.

The Committee declined to interpret the municipality's own ordained code of ethics, but held that, regardless of that code, it would be unethical for him to represent the builder under the circumstances, even with disclosure, withdrawal, and non-participation. It relied on Opinion 90 and In re A. & B., quoting the Supreme Court's statement that land development is an area in which the likelihood of transactions with a municipality and the room for public misunderstanding are so great that a member of the bar should not represent a developer operating in a municipality where the lawyer is the municipal attorney or holds any other municipal office of apparent influence, and that the fact of such dual representation is itself contrary to the public interest.

The Committee rejected the inquirer's apparent belief that the conflict rule applied only to the municipal attorney, reiterating (from Opinion 88 and others) that an attorney representing any municipal board, agency, or body is equally affected, and that where the public interest is involved every situation affording a chance for impropriety, however slight, should be avoided. It concluded it would be unethical for the assistant municipal attorney to continue representing the builder in his own or any other municipality while the builder is operating in the municipality he represents.

Currency note

This opinion was issued in September 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 (Canon 6) and its own prior opinions. It also predates the 1984 Rules of Professional Conduct and all later revisions, including the 2004 revisions that abolished the separate "appearance of impropriety" standard. The conflict principles it applied are now treated under RPC 1.7. 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 disclosing the relationship and stepping aside from the hearing cure the conflict?

A: No. The Committee held it would be unethical for the assistant municipal attorney to represent the builder even with disclosure to the board, withdrawal from the variance hearing, and non-participation in the deliberations.

Q: Does the rule apply only to the municipal attorney, or to other municipal board counsel too?

A: It applies to both. The Committee reiterated that an attorney representing any municipal board, agency, or body is equally affected by the conflict rule.

Q: Could he represent the builder in a different municipality while the builder operated in his own town?

A: No. The Committee concluded it would be unethical to continue representing the builder in his own or any other municipality while the builder is operating in the municipality he represents.

Background and rules framework

The opinion applied Canon 6 of the Canons of Professional Ethics and the Committee's government-conflict line, anchored in the Supreme Court's decision In re A. & B., to a municipal officer representing a developer. In current New Jersey terms the analysis falls under RPC 1.7.

Citations and references

Cases:

• In re A. & B., 44 N.J. 331 (1965)

Other authorities:

• Canons of Professional Ethics, Canon 6 (conflicting interests)
• ABA Committee on Professional Ethics and Grievances, Opinion 49 (1931)
• NJ ACPE Opinions 90, 89 N.J.L.J. 241 (1966); 88, 89 N.J.L.J. 49 (1966); 85, 88 N.J.L.J. 631 (1965); 69, 88 N.J.L.J. 97 (1965)

See also

• NJ ACPE Op. 161: An Office Associate of the Municipal Attorney Representing a Developer
• NJ ACPE Op. 167: A Municipal Judge Representing Land Developers
• NJ ACPE Op. 401: Municipal Solicitor Representing Developers and Land Purchasers

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp157-1.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. 593, September 11, 1969

OPINION 157

Conflict of Interest - Assistant Municipal Attorney Representing Builder

This inquiry is from a part-time assistant municipal attorney whose duties include acting as attorney for the zoning board of adjustment. He represented one of his regular private clients in the preparation and execution of a contract for the purchase of land in the inquirer's municipality. The private client is a builder who has constructed houses in several other communities and the land he is now purchasing requires a change of use variance for the construction of a building thereon. Another attorney represented the builder in his appeal to the zoning board of adjustment for the variance but if the variance is obtained the assistant municipal attorney will resume representing the builder in the title search and mortgage financing. All of the foregoing has been divulged to the zoning board of adjustment. The assistant municipal attorney withdrew from the hearing of the builder's variance appeal before the board of adjustment and did not participate therein nor did he participate in the deliberations of the board in arriving at its decision recommending the variance to the municipal governing body.

We have been asked by the assistant municipal attorney whether the facts, as set forth above, constitute a violation of a quoted section of the code of ethics ordained by the municipality, and, also, whether there is a conflict of interest on his part under the related facts.

We do not believe we have the authority to, nor do we believe we should, undertake the interpretation of a code of ethics ordained by the municipality in which the inquirer is an assistant municipal attorney but, regardless of the code of ethics, it is our opinion that it would be unethical for him to represent the builder under the circumstances related. And this is so even though he makes known his relationship with the client to the zoning board of adjustment, withdraws from the hearing and does not participate therein.

A similar inquiry was considered in N.J. Advisory Committee on Professional Ethics, Opinion 90, 89 N.J.L.J. 241 (1966), where the municipal attorney represented the principal of a partnership in a neighboring municipality. The partnership undertook the construction of an office building in the municipal attorney's community but the municipal attorney had no connection or association with the project. We held that the continued representation of the partnership in the neighboring municipality or elsewhere would be improper. We said:

It is our opinion that the continued representation would be improper under Canons of Professional Ethics, Canon 6. The Supreme Court held in In re A. & B., 44 N.J. 331, (1965) at page 334:

We do not suggest that the members of the bar must receive a prospective client with unbecoming suspicion, nor of course do we suggest that an attorney for a municipality may not represent individuals or interests located therein merely because it may come to pass that the private client will have some transaction with the municipality.

Nonetheless the subject of land development is one in which the likelihood of transactions with a municipality and the room for public misunderstanding are so great that a member of the bar should not represent a developer operating in a municipality in which the member of the bar is the municipal attorney or the holder of any other municipal office of apparent influence. We all know from practical experience that the very nature of the work of the developer involves a probability of some municipal action, such as zoning applications, land subdivisions, building permits, compliance with the building code, etc.

See also N.J. Advisory Committee on Professional Ethics, Opinion 85, 88 N.J.L.J. 631 (1965), and Opinion 69, 88 N.J.L.J. 97 (1965).

The assistant municipal attorney submitting this inquiry seems to believe that the conflict of interest in this area which we have previously condemned applies only to the municipal attorney but we have made it clear that an attorney representing any municipal board, agency or body is equally affected. In N.J. Advisory Committee on Professional Ethics, Opinion 88, 89 N.J.L.J. 49 (1966), we used the following language:

Running through all our opinions, in this area of conflict, is the prevailing theme that, where the public interest is involved, every situation which affords a chance for impropriety, however slight, should, if possible, be avoided in order to eliminate public suspicion that an attorney in public office will use his position or influence in behalf of a client. And this is so whether he is the attorney for or a member of a public body, board or agency. In this respect the language of the A.B.A. Comm. on Professional Ethics and Grievances, Opinion 49 (1931), is particularly appropriate. The Committee said:

If the profession is to occupy that position in public esteem which will enable it to be of the greatest usefulness, it must avoid not only all evil, but must likewise avoid the appearance of evil.

And in N.J. Advisory Committee on Professional Ethics, Opinion 69, 88 N.J.L.J. 97 (1965), we said:

All that we have said concerning the municipal attorney and the municipality he represents applies with equal force to an attorney representing any municipal board, agency or other public body.

In the case of In re A. & B., supra, the Supreme Court, as above stated, made its views clear on the subject. The following excerpt from that opinion is significant:

It is accordingly our view that such dual representation is forbidden even though the attorney does not advise either the municipality or the private client with the respect to matters concerning them. The fact of such dual representation itself is contrary to the public interest.

We conclude therefore that it would be unethical for the assistant municipal attorney to continue representing the builder in his own or any other municipality while the builder is operating in the municipality he represents.