May the law partner of a municipal prosecutor serve as counsel to a nonprofit senior-housing development corporation whose board is appointed by the township?

Plain-English summary

The inquirer's law partner had been appointed municipal prosecutor. Separately, the municipality had appointed a citizens' committee to form a nonprofit corporation, the Adult Community Development Corporation, to build and maintain senior-citizen housing, and that corporation's trustees wished to retain the inquirer as counsel. Mindful of Opinion 281, the inquirer asked whether his partner's office as municipal prosecutor barred him from accepting.

The Committee distinguished Opinion 281, where the development corporation's attorney wanted to appear before the municipality's public boards on behalf of other clients. It recognized that, under Opinions 5, 8, and 186, neither a municipal prosecutor nor his partner may appear before the municipal zoning or planning board, and that R. 1:15-3(c) limits such appearances. But those limits did not apply here, because the inquirer was not seeking to appear before municipal boards.

The Committee concluded there was no conflict. The inquirer would confine his activities in the municipality solely to the autonomous development corporation, whose only connection to the municipal government was that its members were appointed by the township committee. His fees would come from the corporation, not the municipality, and there would be no relationship between him and the municipality as such, so his partner's role as municipal prosecutor created no conflict of interest.

Currency note

This opinion was issued in 1975, 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 conflict concerns it applied are now treated under RPC 1.7 and, for government lawyers, RPC 1.11. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance.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 municipal prosecutor's law partner represent a township-created housing corporation?

A: Under this opinion, yes, where the corporation is autonomous and the lawyer will not appear before municipal boards on its behalf.

Q: Why was this different from the situation in Opinion 281?

A: In Opinion 281 the development corporation's attorney wanted to appear before the municipality's boards for other clients. Here the inquirer would represent only the autonomous corporation and not appear before those boards.

Q: Did the township's appointment of the corporation's board create a conflict?

A: No. The Committee found the only tie to the municipality was the board's appointment by the township committee; the corporation received no municipal funding and paid the lawyer itself, so no conflict arose.

Background and rules framework

The opinion applied the public-officer conflict principle limiting where a municipal prosecutor and his partners may appear, reflected in R. 1:15-3(c) and Opinions 5, 8, 186, and 281. 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 1975; now MR 1.7 / NJ RPC 1.7 and MR 1.11 / NJ RPC 1.11

Court rules:

• R. 1:15-3(c) (limits on municipal attorneys and prosecutors), as in effect 1975

Other opinions cited:

• NJ ACPE Opinion 5, 86 N.J.L.J. 361 (1963)
• NJ ACPE Opinion 8, 86 N.J.L.J. 718 (1963)
• NJ ACPE Opinion 186, 93 N.J.L.J. 617 (1970)
• NJ ACPE Opinion 281, 97 N.J.L.J. 362 (1974)

See also

• NJ ACPE Op. 366: A Municipal Prosecutor Whose Partner is the Zoning Board Attorney
• NJ ACPE Op. 389: A Municipal Attorney/Prosecutor Whose Partners' Spouse is on the Zoning Board
• NJ ACPE Op. 406: A Municipal Attorney and Municipal Public Defender as Office Associates

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp297-1.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.

98 N.J.L.J. 126, February 6, 1975

OPINION 297

Conflict of Interest Adult Community Development Corporation Attorney Partner of Municipal Prosecutor

The inquirer's law partner has been appointed municipal prosecutor. The municipality has also appointed a committee of citizens to form a nonprofit corporation for the purpose of building and maintaining housing for senior citizens within the municipality. The board of trustees of the new corporation, which will be known as the Adult Community Development Corporation, wishes to appoint the inquirer as its counsel.

In view of our Opinion 281, 97 N.J.L.J. 362 (1974), the attorney wishes to be advised as to whether he is barred from accepting this appointment because of his partner's office as municipal prosecutor. He points out that the development corporation's board members serve without remuneration and that the corporation receives no funding from the municipality, although its board members are appointed by the township committee and the corporation must deal with the township in acquiring real estate, tax abatement and any zoning changes.

This inquiry differs from the one which was before this Committee in Opinion 281, supra, in that there the attorney for the development corporation desired to appear before the several public boards of the municipality on behalf of other clients.

We have discussed the limitation on the appearance of partners of municipal prosecutors before various boards of the municipal government in Opinion 5, 86 N.J.L.J. 361 (1963), and Opinion 8, 86 N.J.L.J. 718 (1963). Such limitations, of course, would also affect the inquirer here, as a partner of a municipal prosecutor. But, we do not have that problem here since he is not seeking leave to appear before these municipal boards, but only to represent the autonomous development corporation.

We have examined R. 1:15-3(c) and the cases and opinions of this Committee cited in the annotations in the Pressler edition, and in particular Opinion 186, 93 N.J.L.J. 617 (1970). In that opinion, we held that neither a municipal prosecutor nor his partner may appear before the municipal zoning or planning board and, of course, that limitation would apply to other municipal boards.

However, it is our view that there is no conflict in the situation here presented, since the inquirer will confine his activities in the municipality solely to the autonomous development corporation and the latter's only connection with the municipal government is that its members are appointed by the township committee. Whatever remuneration will be paid to the attorney will come from the development corporation, and none of its funds will come from the municipality. There will be no relationship between the inquirer and the municipality, as such, and the fact that his partner is the municipal prosecutor will not create any conflict of interest.