Can a zoning board attorney keep defending the board on appeal when the appealing applicant is a client of the attorney's law partner?

Plain-English summary

An attorney for a municipal zoning board of adjustment asked whether he could continue representing the board in an appeal from the denial of a variance. The applicant, "T & R Development Company," had been denied a variance and appealed to the Law Division. About six months before that denial, one of the inquirer's partners had been retained by a principal of the applicant to handle an unrelated subdivision application and property transfer in a neighboring county. Only after the variance denial did the inquirer learn that his partner's client was one of the principals behind the variance application. He asked whether continuing to defend the board would violate Canon 6.

The Committee concluded the dual representation was unethical. It applied the guidance of In the Matter of A. and B., Attorneys-at-Law, that a member of the bar should not represent a developer operating in a municipality in which the lawyer holds a 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 suggestion that the two matters being separate and distinct avoided a conflict, explaining that this observation is inappropriate when one of the parties is a public agency. In those circumstances the public interest is involved, and an attorney may not represent conflicting interests even with the consent of all concerned after full disclosure.

The Committee therefore found it unethical for the attorney to continue representing the board of adjustment in a matter in which his firm was at the same time representing one of the principals of the applicant.

Currency note

This opinion was issued in June 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 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, including the imputation of one partner's conflicts to the firm under RPC 1.10. Treat this page as historical context, not current guidance.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 it matter that the partner's representation of the applicant was in a completely unrelated matter?

A: No. The Committee rejected the argument that the matters being separate avoided a conflict, holding that where one party is a public agency the public interest itself bars the firm from being on both sides.

Q: Could the parties have consented to cure the conflict?

A: No. The Committee held that when the public interest is involved (a public agency is a party), an attorney may not represent conflicting interests even with the consent of all concerned after full disclosure.

Q: Is a partner's conflict attributed to the lawyer representing the board?

A: Yes, on these facts. The Committee treated the firm as representing both the board and a principal of the applicant, finding it unethical for the inquirer to continue representing the board while his firm represented the applicant's principal.

Background and rules framework

The opinion applied Canon 6 of the Canons of Professional Ethics, drawing on In the Matter of A. and B. and In re Kamp for the principle that a lawyer should not represent private development interests where the lawyer holds municipal influence, and that consent cannot cure a conflict involving the public interest. In current New Jersey terms the analysis falls under RPC 1.7 and, for the firm-wide effect, RPC 1.10.

Citations and references

Cases:

• In the Matter of A. and B., Attorneys-at-Law, 44 N.J. 331 (1965)
• In re Kamp, 40 N.J. 588 (1963)
• Ahto v. Weaver, 39 N.J. 418 (1963)

Other authorities:

• Drinker, Legal Ethics 120 (1953)
• Chief Justice Weintraub, "Notice to the Bar," 86 N.J.L.J. 713 (1963)
• NJ ACPE Opinion 100, 89 N.J.L.J. 696 (1966)

See also

• NJ ACPE Op. 177: Board of Adjustment Counsel Who Is an Associate of the Municipal Attorney
• NJ ACPE Op. 186: Zoning-Board Counsel Whose Partner Sits on the Governing Body
• NJ ACPE Op. 199: Representing Both the Zoning and Planning Boards

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp179-1.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. A short connecting line introducing the quoted A. and B. guidelines appears to be omitted on the mirror; the holding is reproduced as published.

93 N.J.L.J. 469, June 25, 1970

OPINION 179

Conflict of Interest Zoning Board Attorney Partner Representing Appealing Applicant

An attorney for a municipal zoning board of adjustment inquires whether he may continue to represent the zoning board in an appeal from the denial of the grant of a variance where the appellant is a principal of a business entity which is represented by an office partner of the attorney. The attorney states that an application was made to the board of adjustment by a business entity known as "T & R Development Company." The board of adjustment which he represents denied the variance request and the applicant appealed that decision to the Law Division.

Some six months prior to the denial, the applicant retained one of the inquirer's partners to represent him in connection with a subdivision application and property transfer in a neighboring county, said transaction being totally unrelated to the variance application. The attorney states that subsequent to the denial of the variance application he learned that his partner's client was one of the principals involved in the variance application. He is now representing the board of adjustment in defense of the denial and requests our opinion as to whether such representation would constitute a violation of the Canons of Professional Ethics, Canon 6.

guidelines for decision in such cases as follows:

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.... The fact of such dual representation itself is contrary to the public interest. In the Matter of A. and B. Attorneys-at-Law, 44 N.J. 331 (1965); see also In re Kamp, 40 N.J. 588 (1963).

The inquirer suggests that the situation could not be interpreted as a conflict of interest, "simply because the two matters are completely separate and distinct from each other." But such an observation is inappropriate with respect to transactions where one of the parties is a public agency. In such circumstances, the public interest is involved and an attorney may not represent conflicting interests even with the consent of all concerned after full disclosure. Drinker, Legal Ethics 120 (1953); Chief Justice Weintraub in "Notice to the Bar," 86 N.J.L.J. 713 (1963); Ahto v. Weaver, 39 N.J. 418, 431 (1963); N.J. Advisory Committee on Professional Ethics, Opinion 100, 89 N.J.L.J. 696 (1966).

The Committee therefore finds it unethical for the attorney to continue to represent the board of adjustment in a matter in which his firm is at the same time representing one of the principals of the applicant.