Can an employee of a planning board's attorney, or an attorney who sits on the board of adjustment, practice before other agencies of the same municipality?

Plain-English summary

The Committee was asked two questions: whether an employee of the attorney for the planning board may practice before the board of adjustment of the same municipality, and whether an attorney member of the board of adjustment may practice before the planning board or other municipal agencies in the same municipality. It answered both in the negative.

The Committee had previously stated that it is improper for an attorney member of a board of adjustment or other municipal agency to practice before another agency in the same community, citing its Opinions 64, 70, 37, and 88. It held the same prohibition clearly applicable to attorneys representing such municipal agencies, their partners, office associates, or those merely sharing office space, citing Opinions 4 and 15. The rationale, the Committee explained, is its view that an attorney representing a municipality or any of its agencies has the entire municipality as his client, and accordingly must avoid all situations that might reasonably lead the public to conclude that he has used the influence of his office to serve private interests or that otherwise cast doubt upon his fidelity to the municipality.

Currency note

This opinion was issued in July 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. The government-conflict 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 Treat this page as historical context, not current guidance.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 the staff of a municipal board's attorney appear before another board in the same town?

A: No. The Committee held that an employee of the planning board's attorney may not practice before the board of adjustment of the same municipality.

Q: Can an attorney who sits on the board of adjustment practice before the planning board?

A: No. The Committee answered that inquiry in the negative as well, applying the same prohibition.

Q: Why does the bar reach partners, associates, and office-sharers?

A: Because, in the Committee's view, the lawyer's client is the entire municipality, so the prohibition extends to the agency attorney's partners, office associates, and those sharing office space.

Background and rules framework

The opinion applied the Committee's municipal-conflict line of authority, under which a lawyer representing a municipality or its agency represents the whole municipality and must avoid the appearance of using public office for private advantage. In current New Jersey terms the analysis falls under RPC 1.7 and RPC 1.11 (government lawyers and conflicts).

Citations and references

Other opinions cited:

• NJ ACPE Opinion 64, 87 N.J.L.J. 801 (1964); Opinion 70, 88 N.J.L.J. 161 (1965); Opinion 37, 87 N.J.L.J. 190 (1964); Opinion 88, 89 N.J.L.J. 49 (1966)
• NJ ACPE Opinion 4, 86 N.J.L.J. 357 (1963); Opinion 15, 86 N.J.L.J. 734 (1963)

See also

• NJ ACPE Op. 217: Municipal Utilities Authority Attorney and Town Agencies
• NJ ACPE Op. 236: Law Partners on Opposite Sides of a City Tax Fight
• NJ ACPE Op. 266: County Planning Board Member in Municipal Practice

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp214-1.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. 600, July 8, 1971

OPINION 214

Conflict of Interest Employee of Attorney for Municipal Agency

This Committee was asked to consider the following inquiries:

1. Is it proper for an employee of the attorney for the planning board to practice before the board of adjustment of the same municipality?

2. May an attorney member of the board of adjustment practice before the planning board or other municipal agencies in the same municipality?

The answer to both inquiries is in the negative. This Committee has previously stated that it is improper for an attorney member of the board of adjustment or other municipal agency to practice before another agencies in the same community. See our Opinion 64, 87 N.J.L.J. 801 (1964); Opinion 70, 88 N.J.L.J. 161 (1965); Opinion 37, 87 N.J.L.J. 190 (1964); and Opinion 88, 89 N.J.L.J. 49 (1966). The same prohibition is clearly applicable to attorneys representing such municipal agencies, their partners, office associates, or those merely sharing office space. Opinion 4, 86 N.J.L.J. 357 (1963); Opinion 15, 86 N.J.L.J. 734 (1963). The rationale in each instance is based upon our view that an attorney representing a municipality or any of its agencies has as his client the entire municipality. Opinion 4, 86 N.J.L.J. 357 (1963). He must, accordingly, avoid all situations that might reasonably lead the public to conclude that he has used the influence of his office to serve private interests or which otherwise cast doubt upon his fidelity to the municipality which he serves.