Can a lawyer represent a town's zoning board when his law partner (and relative) sits on the town's governing body?

Plain-English summary

The inquiry asked whether it is ethical for an attorney to represent a zoning board when a relative and law partner is a member of the governing body of the same township. The inquirer pointed to Opinions 44 and 136 as possibly applicable, but the Committee found neither pertinent: Opinion 44 had allowed a firm member to represent an elected, autonomous board of education even though another member was a councilman, and Opinion 136 had held that a relative who is not a law partner sitting on a local board does not bar an attorney from representing the board.

The present inquiry, by contrast, involved two partners, one representing a zoning board (not an elected, autonomous body like the board in Opinion 44) and the other a member of the governing body. The Committee reasoned that counsel for the board appearing before his law partner on the governing body may readily raise doubts among others about the objectivity of any determination of rights at that level. While either partner could disqualify himself, it would be undesirable, if not unfair, to deprive the board or the governing body of either's services, particularly given the known frequency of such appeals. Noting that its jurisdiction does not reach the proprieties of public officeholders except as lawyers occupy such offices, the Committee concluded that it would not be proper for the attorney to represent the zoning board where his law partner sits on the governing body.

Currency note

This opinion was issued in August 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 government-conflict and imputed-disqualification principles it applied are now treated under RPC 1.7 and RPC 1.11. Treat this page as historical context, not current guidance.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 lawyer be zoning-board counsel when his partner is on the town council?

A: No. The Committee held it improper for an attorney to represent a zoning board where his law partner sits on the municipality's governing body.

Q: Why didn't Opinions 44 and 136 control?

A: Opinion 44 involved an autonomous, elected board of education and Opinion 136 involved a relative who was not a law partner; here two partners were involved and the board was not autonomous.

Q: Could disqualification in particular cases solve it?

A: The Committee found that undesirable, reasoning it would unfairly deprive either the board or the governing body of needed services given the frequency of such appeals.

Background and rules framework

The opinion applied the Committee's conflict line on lawyers and public office, distinguishing autonomous elected boards and non-partner relatives, to bar a lawyer from representing a zoning board while his law partner sits on the governing body. In current New Jersey terms the analysis falls under RPC 1.7 and RPC 1.11.

Citations and references

Other opinions cited:

• NJ ACPE Opinion 44, 87 N.J.L.J. 297 (1964)
• NJ ACPE Opinion 136, 91 N.J.L.J. 749 (1968)

See also

• NJ ACPE Op. 199: One Attorney for Both the Zoning and Planning Boards
• NJ ACPE Op. 214: Lawyers Tied to a Municipal Agency Practicing Before Other Agencies
• NJ ACPE Op. 315: A Municipal Judge's Associate as a Lay Member of a Municipal Board

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp186-1.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. 617, August 27, 1970

OPINION 186

Conflict of Interest - Representing Zoning Board Partner on Governing Board

The following inquiry is presented for our opinion:

Is it ethical for an attorney to represent a zoning board when a relative and partner is a member of the governing body of the same township?

The inquirer refers to our Opinions 44, 87 N.J.L.J. 297 (1964), and 136, 91 N.J.L.J. 749 (1968), as possibly being applicable to his situation. Neither opinion is pertinent. Opinion 44 held that where one member of a law firm was a councilman, another member of the firm may ethically represent an elected board of education in the same municipality in view of the autonomous character of the board. In Opinion 136 we held that the mere fact that a relative (not a law partner) sits on a local board does not bar an attorney from representing the board.

The present inquiry involves two partners; one represents a zoning board (not an elected, autonomous body as the board in Opinion 44) and the other would be a member of the governing body. The appearance of counsel for the board before his law partner sitting as a member of the governing body may readily raise doubts in others concerned with the matter as to the objectivity of any determination of rights at this level of the proceedings. While either the zoning board's counsel or his law partner, governing body member, might disqualify himself in such instances, it would seem undesirable, if not unfair, to either the board or the governing body to be deprived of the services of either the counsel or the council member, particularly in view of the known frequency of such appeals.

This Committee's jurisdiction does not encompass the proprieties of public officeholders, such as members of municipal governing bodies; except to the extent that lawyers occupy such offices. In this instance it is our opinion for the reasons stated that it would not be proper for an attorney to represent a zoning board where his law partner sits as a member of the municipality's governing board.