May a lawyer who sits on the county planning board represent private clients before municipal planning boards and other municipal agencies in the county?

Plain-English summary

The inquiry came from an attorney who was a member of the county planning board and asked whether he could represent private clients before municipal planning boards within the county, and before other municipal agencies.

On the first question, the Committee found the answer clear: the attorney-member of the county planning board should not represent clients before a municipal planning board. It identified the controlling principle as the interaction between DR 8-101 (attorneys as public officials) and DR 9-101 (avoidance of the appearance of impropriety), citing Opinions 106 and 189.

On the second question, the Committee found the answer less clear. Opinion 168, which barred a county planning board attorney from representing persons accused of crime in the county, would on its reasoning suggest a bar to all municipal-agency representation. But the later Opinion 204, addressing the broader office of county counsel, had approved a wide range of representation of private interests, applying a test of whether there is "generally" a conflict, and approving representation unless a conflict existed in the particular case. Following that later test, the Committee concluded there was no impropriety, as a general proposition, in a county planning board member representing private clients before municipal agencies except on matters relating to planning, zoning, and the like, but that under DR 9-101 extreme care should be exercised to avoid the appearance of impropriety. The Committee added that where a conflict arises, the preferred solution is non-representation of the conflicting interest, not the official's abstention from the public function for which he was elected or appointed.

Currency note

This opinion was issued in 1973, before New Jersey's adoption of the 2004 revisions to the Rules of Professional Conduct, and predates the 1984 replacement of the Disciplinary Rules by the RPCs. The public-official and appearance principles it applied (DR 8-101, DR 9-101) are now treated under RPC 1.7, RPC 1.11, and RPC 8.4. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a county planning board member appear before a municipal planning board for a client?

A: Under this opinion, no; the Committee found that representation clearly improper.

Q: Can he appear before other municipal agencies?

A: Generally yes, except on planning, zoning, and similar matters, and only with extreme care to avoid the appearance of impropriety.

Q: If a conflict arises, should the lawyer step back from the board instead of the case?

A: No. The Committee said the preferred solution is to decline the conflicting representation rather than to stop performing the public function he was elected or appointed to do.

Background and rules framework

The opinion applied DR 8-101 (lawyers holding public office) and DR 9-101 (appearance of impropriety), reconciling the broad bar suggested by Opinion 168 with the "generally a conflict" test of Opinion 204. In current New Jersey terms, these map to RPC 1.7, RPC 1.11, and RPC 8.4.

Citations and references

Rules of Professional Conduct:

• DR 8-101 (lawyer as public official) and DR 9-101 (appearance of impropriety), as in effect 1973; now MR 1.7 / NJ RPC 1.7, MR 1.11 / NJ RPC 1.11, MR 8.4 / NJ RPC 8.4

Other opinions cited:

• NJ ACPE Opinion 106, 90 N.J.L.J. 97 (1967); Opinion 168, 93 N.J.L.J. 7 (1970); Opinion 189, 93 N.J.L.J. 789 (1970); Opinion 204, 94 N.J.L.J. 445 (1971)

See also

• NJ ACPE Op. 300: An Attorney for Both a Planning Board and a Board of Health
• NJ ACPE Op. 281: Housing Association Counsel Appearing Before Town Boards
• NJ ACPE Op. 262: A County School Attorney Representing a Civil Service Council

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp266-1.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.

96 N.J.L.J. 1262, November 1, 1973

OPINION 266

Conflict of Interest County Planning Board Member Municipal Practice

This inquiry concerns the propriety of an attorney, a member of the county planning board, representing private clients before municipal planning boards within that county. The inquiry also relates to the propriety of such attorney-planning board member representing clients before other municipal agencies within the county.

The answer to the first part of the inquiry is clear. The attorney member of the county planning board should not represent clients before a municipal planning board. Reference to numerous former opinions of this committee establishes this principle beyond question. For example, N.J. Advisory Committee on Professional Ethics, Opinion 106, 90 N.J.L.J. 97 (1967), and Opinion 189, 93 N.J.L.J. 789 (1970), demonstrate that the controlling principle in this inquiry is the interaction between DR 8-101 relating to attorneys as public officials and DR 9-101 regarding avoidance of appearance of impropriety.

The answer to the second part of the inquiry is less clear. N.J. Advisory Committee on Professional Ethics, Opinion 168, 93 N.J.L.J. 7 (1970), would at first reading appear - on the basis of its reasoning - dispositive of the issue as barring representation by such an attorney before all municipal agencies. We there held that an attorney for a county planning board (and by its expressed reasoning the opinion would apply to an attorney-member of the planning board) could not represent within the county persons accused of crime. If such representation constitutes a conflict or impropriety, then it is difficult to see how representation by such an attorney before any municipal agency would not be.

But our later N.J. Advisory Committee on Professional Ethics, Opinion 204, 94 N.J.L.J. 445 (1971), answering an inquiry relating to county counsel (a position of much wider scope than member of or counsel to the county planning board) approved a broad range of activities relating to municipalities in which the county counsel might properly represent private interests. The test applied in that opinion was whether there is "generally" a conflict. If not, then the representation was approved unless in the particular case a conflict did exist.

Based upon this later test we believe that there is no impropriety - as a general proposition - in a member of the county planning board representing private clients before municipal agencies except in respect to matters relating to planning, zoning and the like. In view, however, particularly of DR 9-101 extreme care should be exercised by the official in question to avoid the appearance of impropriety in such representation.

We note in passing that the attorney in question in his memo suggested - as a remedy for a situation where a conflict arose - his abstention from acting as a member of the county planning board in respect to that matter. We stress that the preferred solution is non-representation of the conflicting interest rather than the nonfulfillment of the function for which the official was elected or appointed.