Can one attorney represent both the board of adjustment and the planning board of the same municipality?

Plain-English summary

The Committee had been petitioned to reconsider its Opinion 164, which had said that the potential of conflict between a municipality's board of adjustment and planning board is so inherent in their different duties that an attorney should not undertake to represent both boards in the same municipality.

After considering the petitioners' arguments, the Committee concluded that the cited language of Opinion 164 should be modified. As modified, the rule is that an attorney should not undertake to represent both boards in the same municipality if there is or may be a conflict of interest in a particular situation. The Committee added that it is not its function to decide whether there is incompatibility between the two offices as a matter of law; that determination can only be made by the courts.

Currency note

This opinion was issued in March 1971, 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, and New Jersey's land-use boards have since been restructured by statute. The dual-representation conflict principle it applied is 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 Treat this page as historical context, not current guidance.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 the same lawyer represent a town's planning board and its board of adjustment?

A: Only where no conflict is or may be present. The Committee modified its earlier flat prohibition to turn on whether a conflict exists in a particular situation.

Q: How did this opinion change Opinion 164?

A: Opinion 164 had barred representing both boards outright; Opinion 199 softened that to bar it only where there is or may be a conflict of interest in a particular situation.

Q: Does the Committee decide if the two roles are legally incompatible?

A: No. It said deciding incompatibility as a matter of law is for the courts, not the Committee.

Background and rules framework

The opinion reconsidered and narrowed the dual-representation rule of Opinion 164, tying the prohibition to the presence of an actual or potential conflict rather than treating it as inherent. 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 164, 92 N.J.L.J. 831 (1969)

See also

• NJ ACPE Op. 300: Attorney for Both the Planning Board and the Board of Health
• NJ ACPE Op. 214: Lawyers Tied to a Municipal Agency Practicing Before Other Agencies
• NJ ACPE Op. 217: Municipal Utilities Authority Attorney and Town Agencies

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp199-1.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.

94 N.J.L.J. 225, March 25, 1971

OPINION 199

Conflict of Interest Representing Zoning and Planning Boards

We have been petitioned to reconsider our Opinion 164, 92 N.J.L.J. 831 (1969), concerning the propriety of an attorney representing both the board of adjustment and the planning board of the same municipality, wherein we used the following language: ...Accordingly, it is our opinion that the potential of conflict between the two boards is so inherent in their different duties, that an attorney should not undertake to represent both boards in the same municipality.

After carefully considering the arguments presented by the petitioners for reconsideration we have concluded that the above cited language of Opinion 164 should be modified to read as follows: ...Accordingly, it is our opinion that an attorney should not undertake to represent both boards in the same municipality if there is or may be a conflict of interest in a particular situation. It is not the function of this Committee to decide whether there is incompatibility between the two offices as a matter of law. Such determination can only be made by our courts.