Can one attorney represent both the board of adjustment and the planning board of the same municipality?

Plain-English summary

The Committee was again asked whether it is proper for an attorney to represent both the board of adjustment and the planning board of the same municipality. It recalled Opinion 127, where the same question arose, and its earlier opinions holding that an attorney cannot represent more than one agency of a municipality if there is or may be a conflict of interest in a particular situation, along with Supreme Court decisions (Schear v. Elizabeth, Dolan v. DeCapua, Wilson v. Long Branch) criticizing the representation of more than one agency in the same municipality because of the potential danger of conflict inherent in such representation.

The Committee noted that Opinion 127 had been limited to the factual context of that inquiry, but observed that an attorney cannot foresee all the situations where conflicts may arise between the two boards. It therefore concluded that the potential for conflict between the two boards is so inherent in their different duties that an attorney should not undertake to represent both boards in the same municipality.

Currency note

This opinion was issued in December 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-of-interest 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 Treat this page as historical context, not current guidance.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 the same lawyer serve as counsel to both a town's planning board and its zoning board of adjustment?

A: No. The Committee held an attorney should not represent both boards of the same municipality, because the conflict between their different duties is inherent.

Q: Does it matter that no actual conflict has arisen yet?

A: No. The Committee reasoned that an attorney cannot foresee all the situations where conflicts may arise between the two boards, so the inherent potential for conflict is itself disqualifying.

Background and rules framework

The opinion applied the conflict-of-interest principles of the Canons of Professional Ethics, building on Opinions 127, 67, and 117 and on Supreme Court decisions disapproving one attorney representing multiple municipal agencies. In current New Jersey terms the analysis falls under RPC 1.7.

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 127, 91 N.J.L.J. 262 (1968)
• NJ ACPE Opinion 67, 88 N.J.L.J. 81 (1965)
• NJ ACPE Opinion 117, 90 N.J.L.J. 745 (1967)

See also

• NJ ACPE Op. 199: Representing Both the Zoning and Planning Boards
• NJ ACPE Op. 177: Board of Adjustment Counsel Who Is an Associate of the Municipal Attorney
• NJ ACPE Op. 161: An Office Associate of the Municipal Attorney Representing a Developer

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp164-1.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. 831, December 18, 1969

OPINION 164

Conflict of Interest - Representing Zoning and Planning Boards

Again we are asked for our opinion as to whether it is proper for an attorney to represent both the board of adjustment and the planning board of the same municipality.

In our Opinion 127, 91 N.J.L.J. 262 (1968), the same question was presented. We referred in that opinion to previous opinions of this Committee stating that an attorney cannot represent more than one agency of the municipality if there is or may be a conflict of interest in a particular situation. See also N.J. Advisory Committee on Professional Ethics, Opinions 67, 88 N.J.L.J. 81 (1965), 117, 90 N.J.L.J. 745 (1967). We referred also to decisions of our Supreme Court criticizing the representation of more than one agency in the same municipality because of the potential danger of conflict inherent in such representation. See 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).

Our Opinion 127 (1968) was limited in its application to the factual context set forth in the inquiry. It is apparent, however, that an attorney cannot possibly foresee all the possible situations where conflicts may arise between the two boards. Accordingly, it is our opinion that the potential of conflict between the two boards is so inherent in their different duties, that an attorney should not undertake to represent both boards in the same municipality.