Can a lawyer who is a part-time associate of the municipal attorney appear as counsel for the town's board of adjustment in litigation the municipal attorney is also handling?

Plain-English summary

For twenty years, the inquiring attorney had been associated on a part-time basis with an attorney in an adjacent county, performing services generally from his own office. That other attorney was the long-time municipal attorney of his municipality. A suit had been brought against the municipality, its board of adjustment, and the municipal building inspector. Because of time constraints, the municipal attorney had already filed an answer and cross-claim on behalf of the municipality and the building inspector, and the inquirer wished to appear as attorney of record for the board of adjustment, while also being the person actively in charge of the litigation for the municipal attorney, the building inspector, and the board. He asked whether this created a conflict of interest.

The Committee noted that the public and most local lawyers regarded the two as associated in the practice of law, a perception reinforced by their joint letterhead. It recalled Opinion 91, which addressed whether a zoning board attorney could take action normally required of the municipal attorney and concluded the applicant should not act for the board, and it noted the Legislature had since authorized boards of adjustment to appoint their own attorney separate from the municipal attorney. While Opinion 91 had treated the question of legal incompatibility between the two offices as a matter for the courts rather than the Committee, the Committee found the present facts distinct: here the inquirer and the municipal attorney were associated indirectly, if not directly, in practice, and the litigation could pit the interests of the municipality against those of the board of adjustment or vice versa.

The Committee tied the result to Opinion 164, in which it had pointed to Supreme Court decisions criticizing the representation of more than one agency within the same municipality because of the potential danger of conflict inherent in such representation, citing Schear v. Elizabeth, Dolan v. DeCapua, and Wilson v. Long Branch.

Currency note

This opinion was issued in April 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. 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 one lawyer (or his associate) represent both the municipality and its board of adjustment in the same case?

A: Not under this opinion. The Committee found the inquirer and the municipal attorney were associated in practice, and that representing the board of adjustment while the municipal attorney represented the municipality and building inspector in the same litigation created the multiple-agency conflict the courts have criticized.

Q: Why did the public perception that the two lawyers were associated matter?

A: The Committee relied on the fact that the community and local bar regarded them as associated, reinforced by their joint letterhead, in concluding they were associated indirectly, if not directly, in the practice of law, so the board's representation could not be treated as independent of the municipal attorney's.

Q: Could the board of adjustment have separate counsel instead?

A: Yes. The Committee noted the Legislature had enacted a statute (N.J.S.A. 40:55-36.1 et seq.) allowing a board of adjustment to appoint its own attorney other than the municipal attorney.

Background and rules framework

The opinion applied the conflict-of-interest principles of the Canons of Professional Ethics, building on the Committee's Opinions 91 and 164 and on Supreme Court decisions disapproving representation of multiple agencies within one municipality. In current New Jersey terms the analysis falls under RPC 1.7.

Citations and references

Statutes:

• N.J.S.A. 40:55-36.1 et seq. (board of adjustment may appoint its own attorney)

Cases:

• Schear v. Elizabeth, 41 N.J. 321
• Dolan v. DeCapua, 16 N.J. 599
• Wilson v. Long Branch, 27 N.J. 360

Other opinions cited:

• NJ ACPE Opinion 91, 89 N.J.L.J. 248 (1966)
• NJ ACPE Opinion 164, 92 N.J.L.J. 831 (1969)

See also

• NJ ACPE Op. 179: Zoning Board Counsel Whose Partner Represents the Appealing Applicant
• NJ ACPE Op. 199: Representing Both the Zoning and Planning Boards
• NJ ACPE Op. 366: Municipal Prosecutor Whose Partner Is the Zoning Board Attorney

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp177-1.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. 241, April 9, 1970

OPINION 177

Conflict of Interests Board of Adjustment Attorney Part-time Associate of Municipal Attorney

Our attention has been called to an inquiry by an attorney who advises us that while he maintains his own office in the county seat of the county where he has been engaged in the general practice of law for over forty years, during the past twenty years he has also been associated with an attorney in an adjacent county on a part-time basis. He says that the services which he renders are generally, but not always, conducted from his own office.

The attorney for whom he has rendered services in the adjacent county is the municipal attorney of his municipality and has been for very many years. The board of adjustment of that municipality has no designated attorney and when the occasion has heretofore arisen it engaged special counsel. We are now told that a suit has been instituted against that municipality and its board of adjustment, also joining as defendant the municipal building inspector. We are told that by referring to the bill of complaint filed in that litigation, we should notice that the defendants are not in conflict but are, as he says, consistent with each other. We are further told that because of the time element involved, the municipal attorney has filed an answer and a cross-claim on behalf of the municipality and the building inspector. The inquirer, however, advises us that he desires to appear as attorney of record for the board of adjustment and further states that he will be the person actively in charge of the litigation for and on behalf of the municipal attorney and the building inspector, as well as for the board of adjustment, and he seeks advice as to whether there is a conflict of interests by reason of the foregoing facts.

A disclosure of the facts surrounding this inquiry would indicate that the general public and most of the lawyers in the vicinity are of the opinion that these two lawyers are, in fact, associated with each other in the practice of law. The stationery upon which the inquiry came to the Committee likewise lists both names on the letterhead.

We have previously stated that it would not be desirable for the attorney for the board of adjustment to also be the municipal attorney. To a certain extent we discussed this matter in our Opinion 91, 89 N.J.L.J. 248 (1966), because in that inquiry the question was whether a zoning board attorney was permitted to take certain action which normally was required of the municipal attorney. We concluded in that opinion that under the facts, the applicant should not act as attorney for the board of adjustment.

The Legislature of this State, being of the opinion the board of adjustment ought to have the right to appoint its own attorney, rather than be confronted with a problem as is here presented, enacted a recent statute which provides that the board of adjustment may appoint its own attorney other than the municipal attorney. See P.L. 1965, c. 2156 (N.J.S.A. 40:55-36.1 et seq.).

We are mindful that in our Opinion 91, supra, we also stated that the problem as to whether there is incompatibility between the offices of board of adjustment attorney and municipal attorney was a matter of law and that such determination could only be made by our courts and not by this Committee. For that reason we then expressed no opinion on the subject.

The facts in this inquiry are not only predicated upon different circumstances, but these are two separate and distinct positions. In the particular case before us we must come to the conclusion that the inquirer and the municipal attorney are associated indirectly, if not directly, in the practice of law. Apparently everyone in the community is familiar with that fact and the attorneys' stationery gives further evidence of it. In the litigation it could be that some part of the subject matter might be directed against the municipality and not the board of adjustment or vice versa. Many zoning opinions in the courts have been decided in that matter.

In our Opinion 164, 92 N.J.L.J. 831 (1969), we referred 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 (1954); Dolan v. DeCapua, 16 N.J. 599 (1954); Wilson v. Long Branch, 27 N.J. 360 (1958).