If a lawyer represents a town-created nonprofit housing association whose trustees are appointed by the mayor and council, may he also appear for private clients before that town's boards?

Plain-English summary

The inquirer was attorney for a suburban municipality's senior-citizens housing association, a Title 15 nonprofit created to finance, build, and manage senior housing. The town council had created the entity by resolution describing it as "municipally-inspired, community-oriented, broadly-representative," and its seven trustees were appointed by the mayor and the five council members for three-year terms. The town had spent and would spend no funds on the association, which chose its own administrator and counsel and paid counsel itself; the only tie to the town was the appointment of trustees.

The inquirer asked whether counsel for the association could appear for private clients before various municipal bodies, including the planning board, board of adjustment, redevelopment agency, and the town council.

The Committee acknowledged the association was autonomous in its activities, but found the trustees were to a degree controlled by the town because they owed their appointments to the governing body. Citing the analogous Opinion 123, in which the attorney for an autonomous redevelopment agency could not appear before the town's municipal bodies for private clients, the Committee held its view unchanged: counsel must choose between representing the autonomous agency, which precludes the lawyer and his firm from practicing before the town's bodies, or declining the agency in order to represent private clients before those bodies.

Currency note

This opinion was issued in 1974, 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-officer conflict principle it applied is now treated under RPC 1.7 and, for government-related lawyers, RPC 1.11. (Opinion 297, issued in 1975, distinguished this opinion where the lawyer would not appear before municipal boards at all.) Treat this page as historical context, not current guidance.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 lawyer represent a town-created housing association and still appear before town boards for other clients?

A: Under this opinion, no. The Committee held counsel must choose one role or the other; representing the association precludes the lawyer and his firm from appearing before the town's bodies.

Q: Did the association's autonomy change the result?

A: No. Although the association was autonomous in its operations, the Committee found the town's power to appoint trustees gave it a degree of control, and it followed Opinion 123 in treating such counsel as barred from appearing before town bodies for private clients.

Q: Were the lawyer's partners and associates also affected?

A: Yes. The opinion framed the choice as precluding practice "by themselves and members of their firms" before the various town bodies.

Background and rules framework

The opinion applied the principle that an attorney for an agency tied to a municipality may not appear for private clients before that municipality's bodies, drawn from Opinion 123 and earlier opinions. In current New Jersey terms, these conflicts are governed by RPC 1.7 and RPC 1.11.

Citations and references

Rules of Professional Conduct:

• Public-officer conflict principle, as in effect 1974; now MR 1.7 / NJ RPC 1.7 and MR 1.11 / NJ RPC 1.11

Other opinions cited:

• NJ ACPE Opinion 123, 91 N.J.L.J. 97 (1968) (redevelopment agency counsel)

See also

• NJ ACPE Op. 297: A Development Corporation's Counsel Who is a Prosecutor's Partner
• NJ ACPE Op. 292: A Fire District Attorney Appearing in Municipal Court
• NJ ACPE Op. 300: An Attorney for Both a Planning Board and a Board of Health

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp281-1.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.

97 N.J.L.J. 362, May 16, 1974

OPINION 281

Conflict of Interest Senior Citizens Housing Attorney - Practice Before Municipal Bodies

The inquirer is attorney for the senior citizens housing association of a suburban municipality. This is a Title 15 non-profit association created under the statute for the purpose of independently financing, constructing and managing senior citizens housing in the town. The town council determined by resolution to create this independent entity, and the resolution provided in part that it was a "municipally-inspired, community-oriented, broadly-representative, non-profit corporation or association."

The original board of trustees consisted of seven members, two appointed by the mayor and one by each member of the five-member town council. The trustees are appointed for terms of three years and subsequent appointments will be on the same basis as the original appointments, i.e., the mayor and town council will make such appointments.

The inquirer states that the town has not expended, nor will it in the future expend, any funds on behalf of the association, and the latter is free to act as it chooses, subject to law. Aside from the power of the mayor and governing body of the town to appoint trustees, there is no other relationship between the town and the association. The association chooses its own business administrator and, of course, its own counsel. Payment for the latter's services is made by the association.

The inquiry is whether counsel for the association under such circumstances, may appear for private clients before various municipal bodies, such as the planning board, the board of adjustment, the town redevelopment agency, and the town council itself.

While it is true that the association occupies a position of autonomy in its activities so far as the town is concerned, it is equally true that the members of the board of trustees of the association, to a degree, are controlled by the town, in that they owe their appointments to the governing body. In a situation somewhat analogous, Opinion 123, 91 N.J.L.J. 97 (1968), this committee said that the attorney of a redevelopment agency, which is also autonomous so far as the town is concerned and similar to the agency in question here, could not appear before the town's municipal bodies on behalf of private clients. In that opinion, we cited earlier opinions bearing on the same subject.

Our views on this have not changed. Counsel in these cases must make a choice as to whether they desire to represent the autonomous agency and thus preclude the practice by themselves and members of their firms before the various town bodies, or whether they believe it to be more to their advantage to decline representation of the agency and represent private clients before the various municipal bodies.