Is it a conflict for a lawyer to represent a municipal planning board when his law partner is the father of the town's mayor?

Plain-English summary

The Committee was asked whether it is proper for an attorney to represent a municipality's planning board when his law partner is the father of the mayor. It distinguished its line of opinions holding that one attorney (or another lawyer from the same office) may not represent both the municipality and a zoning or planning board, because those turned on the conflict between dual representations, which was not present here.

The Committee identified the only concern as the possibility that the planning board attorney might be influenced by the mayor's views on a given application. It observed that this kind of threat is inherent in any relationship an attorney has with family or friends and does not necessarily become more potent because the relation is with a mayor. Where the mayor, as part of the governing body, reviews a planning board action, the responsibility to disqualify rests with the decision-maker, by analogy to a judge with an interest in a proceeding, as in Opinion 136 (proper to represent a planning board on which the attorney's uncle sat).

The Committee then addressed the separate rule that an attorney must avoid even the slightest appearance that an objective decision was the product of bias or influence, or that the attorney might use influence with a public authority for a client. It distinguished the uncle-on-the-board situation because here the attorney might try to use influence on behalf of his client (the board) when board decisions are appealed to the governing body. Reducing the question to which relationships should be proscribed in connection with this appearance, the Committee concluded that any relationship other than actual kinship is so difficult to ascertain and evaluate that it should not be included within the proscribed area, and that the mayor's being related to someone else in the same office is not determinative because the question is not one of potentially conflicting duties to clients.

Currency note

This opinion was issued in January 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 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: Does a remote family tie between a board's lawyer and an elected official create a conflict?

A: Not under this opinion. The Committee held that only actual kinship between the lawyer and the official is proscribed; being the partner of the mayor's father was too remote to bar representing the planning board.

Q: How is this different from the cases barring one office from representing both the municipality and a board?

A: Those opinions turned on a conflict between two simultaneous representations. Here there was no dual representation, only a question of possible influence, which the Committee found insufficient.

Q: Who must step aside if the mayor reviews a planning board action?

A: The Committee said the responsibility to disqualify rests with the decision-maker (the mayor reviewing the action), by analogy to a judge who has an interest in a proceeding before him.

Background and rules framework

The opinion applied the Canons of Professional Ethics and the appearance-of-impropriety principle, distinguishing actual kinship (proscribed) from more attenuated relationships, and separating the dual-representation conflict line from the influence concern. In current New Jersey terms the analysis falls under RPC 1.7.

Citations and references

Other opinions cited:

• NJ ACPE Opinions 127, 91 N.J.L.J. 262 (1968); 117, 90 N.J.L.J. 745 (1967); 67, 88 N.J.L.J. 81 (1965)
• NJ ACPE Opinion 149, 92 N.J.L.J. 185 (1969)
• NJ ACPE Opinion 136, 91 N.J.L.J. 749 (1968) (uncle on planning board)
• NJ ACPE Opinions 88, 32, 22, 20, and 4

See also

• NJ ACPE Op. 199: Representing Both the Zoning and Planning Boards
• NJ ACPE Op. 186: Zoning-Board Counsel Whose Partner Sits on the Governing Body
• NJ ACPE Op. 266: County Planning Board Member's Municipal Practice

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp169-1.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. 17, January 8, 1970

OPINION 169

Conflict of Interest Planning Board Attorney Partner of Mayor's Father

Inquiry has been made as to whether it is proper for an attorney to represent the planning board of a municipality when his law partner is the father of the mayor of the municipality.

It has been settled by our opinions that, because of the particular duties assigned to zoning and planning boards under New Jersey statutes, it is improper for the same attorney to represent both the municipality and either of these boards. Opinions 127, 91 N.J.L.J. 262 (1968); 117, 90 N.J.L.J. 745 (1967); 67, 88 N.J.L.J. 81 (1965). Moreover, it has been recognized that, because of the latent conflicts presented by such a dual representation, it is improper for one attorney to represent one of the boards and for another attorney from the same office to represent the municipality. Opinion 149, 92 N.J.L.J. 185 (1969).

All these opinions, although very helpful on the question of the relation and potential conflicts between the planning board and the municipality, are not dispositive of the present inquiry where there is no potential conflict of interests stemming from dual representation. The only element of the present inquiry which might prevent the attorney from performing an unhampered and unbiased service to his client is the possibility that he might be influenced by the mayor's view on a given application. It would appear, however, that this is a threat which is inherent in every relation that an attorney has with family or friends, and that it does not necessarily become more potent because that relation is with a mayor.

If the situation arises where the mayor, as a representative of the governing body, is called upon to review an action of the planning board (e.g., to review the disapproval of a subdivision), then by analogy to cases involving the propriety of a judge sitting in a proceeding in which he has an interest, the responsibility is with the one making the decision to disqualify himself. See Opinion 136, 91 N.J.L.J. 749 (1968), which concluded that it was proper for an attorney to represent a planning board of which his uncle was a member and chairman, as he was seeking no discretionary favor on behalf of a private client.

This allocation of responsibility, however, does not meet the problem posed by the commonly invoked rule that it is an attorney's responsibility to avoid all situations in which there may be even the slightest appearance, to the public or to an opposing party, that a purportedly objective decision may have been the result of bias or influence, or that an attorney might use his position or influence with a public authority to effect a result favorable to a client. See, in connection with distinguishable fact situations, Opinion 88, 89 N.J.L.J. 49 (1966), and opinions cited therein; Opinions 32, 87 N.J.L.J. 185 (1964); 22, 87 N.J.L.J. 13 (1964); 20, 86 N.J.L.J. 734 (1963); and 4, 86 N.J.L.J. 357 (1963).

The present inquiry is distinguishable from that involving the attorney with an uncle on the planning board, Opinion 136 supra because in the present case there is the possibility that the attorney will to try use influence on behalf of his client (the planning board) when planning board decisions or recommendations are appealed to the municipal governing body.

This inquiry is thus reduced to the question of what relationships are to be proscribed in connection with this appearance of bias and influence, and specifically whether this relationship, involving the son of a law partner, is within this proscribed area. We conclude that any relationship other than that of actual kinship is so difficult to ascertain and evaluate that it should not be included within the area of proscribed activity. The fact that the mayor is related to someone else in the same office is not determinative in this inquiry because the question is not one of potentially conflicting duties to clients.