Can a municipal judge also act as the attorney for a developer whose land project needs approvals from that same municipality's boards?

Plain-English summary

The Committee was asked whether a municipal judge could act as attorney for a developer of land located in the municipality he serves, when one of the major concerns was the action of the municipal planning and zoning boards. It answered that its reasoning in Opinion 157 (an assistant municipal attorney representing a builder), and the opinions and cases cited there, applied with equal force to a municipal judge representing a developer, and that such representation clearly violated the letter and spirit of Canon 6.

The Committee pointed to R. 1:15-1, which limits the practice of attorneys serving as judges and provides that a judge of a municipal court shall not act as attorney for the municipality or any of the municipalities in which he serves, nor for any agency or officer thereof, nor practice before its governing body or any agency or officer. Because any development requires applications to boards such as the planning board, board of adjustment, building inspector, and municipal engineer, a municipal judge making such applications would violate Canon 6's prohibition on representing conflicting interests.

The Committee reasoned that, in a broad sense, a municipal judge has the entire municipality as his client and should avoid retainers that place him in a position where he appears to seek relief or favor from the municipality or its agencies for a private client, or to oppose municipal action for a private client. If he did so and succeeded, the losing litigant or the public would be troubled by the suspicion that his success was attributable to his position or influence as municipal judge. The Committee added that, while two private clients may sometimes consent to representation despite a possible conflict, consent is generally unavailable where the public interest is involved.

Currency note

This opinion was issued effective January 1, 1970, 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 the then-current court rules. It also predates the 1984 Rules of Professional Conduct and all later revisions. The conflict principles it applied are now treated under RPC 1.7, and the limitations on a judge's practice are governed by current court rules and the Code of Judicial Conduct. 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 part-time municipal judge represent private clients before his own municipality's boards?

A: No. The Committee held a municipal judge may not act as attorney for a developer whose project requires applications to the municipality's planning and zoning boards, because it violates Canon 6 and R. 1:15-1.

Q: Why does the Committee say the judge's "client" is the whole municipality?

A: It reasoned that, in a broad sense, a municipal judge has the entire municipality as his client, so he should avoid any retainer that puts him in the position of seeking favor from, or opposing, the municipality or its agencies for a private client.

Q: Could the conflict be cured by consent?

A: No. The Committee noted that, although two private clients may sometimes consent to a possible conflict, consent is generally unavailable where the public interest is involved.

Background and rules framework

The opinion applied Canon 6 of the Canons of Professional Ethics together with R. 1:15-1, the court rule limiting the practice of attorneys who serve as judges and surrogates. In current New Jersey terms, the conflict analysis falls under RPC 1.7, and a municipal judge's outside practice is constrained by the Code of Judicial Conduct and the court rules.

Citations and references

Court rules:

• R. 1:15-1 (limitation on practice of attorneys serving as judges and surrogates), subsection (c) (judges of municipal courts)

Other authorities:

• Canons of Professional Ethics, Canon 6 (conflicting interests)
• Drinker, Legal Ethics 120 (1953)
• NJ ACPE Opinion 157, 92 N.J.L.J. 593 (1969)

See also

• NJ ACPE Op. 179: Zoning Board Counsel Whose Partner Represents the Appealing Applicant
• NJ ACPE Op. 401: Municipal Solicitor Representing Developers and Land Purchasers
• NJ ACPE Op. 376: Office Relationship of a Municipal Magistrate and School Board Solicitor

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp167-1.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.

93 N.J.L.J. 1, January 1, 1970

OPINION 167

Conflict of Interest Municipal Judge Representing Developers

May a municipal judge act as attorney for a developer of land located in the municipality which he serves, when one of the major concerns is the action of the municipal planning and zoning boards?

Our comments respecting an assistant municipal attorney representing a builder, in our Opinion 157, 92 N.J.L.J. 593 (1969), and the opinions and cases cited therein, apply with equal force and logic to a municipal judge representing a developer. Such representation is clearly a violation of the letter and spirit of Canons of Professional Ethics, Canon 6.

See also, R. 1:15-1 Limitation on Practice of Attorneys Serving as Judges and Surrogates,... (c) Judges of Municipal Courts:

Nor shall he act as attorney for the municipality or any of the municipalities wherein he is serving or as attorney for any agency or officer thereof; nor practice before the governing body or any agency or officer thereof ... .

Any development requires applications to some or all of the following boards or persons: planning board, board of adjustment, building inspector, and the municipal engineer.

A municipal judge in making any such application violates Canon 6 which deals with conflicting interests and provides in part as follows:

It is unprofessional to represent conflicting interests, except by express consent of all concerned given after a full disclosure of the facts. Within the meaning of this canon, a lawyer represents conflicting interests when, in behalf of one client, it is his duty to contend for that which duty to another client requires him to oppose ... .

In a broad sense, a municipal judge has as his client the entire municipality, and he should avoid any retainers from others which may place him in a position where he appears to be either seeking relief or favor from the municipality or any of its agencies for a private client or opposing actions by the municipality or its agencies on behalf of a private client. If he did so, it would be inevitable that, if he were successful, the losing litigant, or the public in general, would be troubled by suspicion that his success in the matter was attributable to improprieties and that his position or influence as municipal judge might have furthered the cause of the private client.

While an attorney representing two private clients may properly act in exceptional cases with the consent of both, even though a possibility of conflicting interests exists, consent is generally unavailable where the public interest is involved. See Drinker, Legal Ethics 120 (1953).