May one attorney serve as counsel to both the planning board and the board of health in the same municipality?

Plain-English summary

The Committee was asked whether one attorney may serve as counsel to both the planning board and the board of health in the same municipality. It reviewed its line of opinions on lawyers serving multiple municipal boards, including that a municipal attorney should not also serve a board if there is or may be a conflict (Opinion 67), that the same considerations bar a municipal attorney's associate from serving as planning board attorney (Opinion 149), and that a municipal attorney may not advise the planning board in preparing the master plan (Opinion 117). Under DR 5-105, a lawyer should decline employment where one client's interests may impair his judgment as to another.

The Committee stressed that this principle applies with particular force to multiple representation of public boards, because the public cannot give informed consent. Where the potential for conflict is reasonably clear, multiple representation should be refused, since the public is ill-served if a conflict later forces the attorney to withdraw from both.

Turning to boards of health, the Committee noted they are autonomous agencies exercising part of the State's police power locally, citing Grosso v. City of Paterson, but found that their matters do not appear inherently in conflict with planning board matters, and that in many places their legal work is so limited that municipal attorneys handle it. It concluded that a planning board attorney may also serve as attorney to the local board of health, except where a particular situation presents a conflict, or a clear potential for conflict is inherent in the actual functions of a particular board of health.

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 multiple-representation concern then in DR 5-105 is 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 Treat this page as historical context, not current guidance.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 one lawyer represent both a municipal planning board and the board of health?

A: Generally yes, under this opinion, except where a particular situation presents a conflict or a clear potential for conflict is inherent in the board of health's functions.

Q: Why is multiple representation of public bodies treated more strictly?

A: Because the public cannot give informed consent after full disclosure, so where the potential for conflict is reasonably clear, the representation should be refused rather than cured by consent.

Q: What happens if a conflict develops later between the two boards?

A: The opinion noted the public is ill-served because the attorney would then have to withdraw from both boards, which is why clear potential conflicts should be avoided at the outset.

Background and rules framework

The opinion applied DR 5-105 (declining employment where one client's interests may impair the lawyer's judgment as to another), with added force for public boards that cannot consent, and surveyed its earlier multiple-board opinions. In current New Jersey terms, the analysis is governed by RPC 1.7 and RPC 1.11.

Citations and references

Rules of Professional Conduct:

• DR 5-105 (declining conflicting employment), as in effect 1975; now MR 1.7 / NJ RPC 1.7 and MR 1.11 / NJ RPC 1.11

Statutes:

• N.J.S.A. 26:3-1 et seq. (local boards of health)

Cases:

• Grosso v. City of Paterson, 55 N.J. Super. 164, 150 A.2d 94 (1959), boards of health as autonomous agencies

Other opinions cited:

• NJ ACPE Opinion 67, 88 N.J.L.J. 81 (1965)
• NJ ACPE Opinion 117, 90 N.J.L.J. 745 (1967)
• NJ ACPE Opinion 149, 92 N.J.L.J. 185 (1969)

See also

• NJ ACPE Op. 415: Office Relationships, Municipal Counsel and County Counsel
• NJ ACPE Op. 353: Conflict of Interest, Waiver by a Public Body
• NJ ACPE Op. 315: A Municipal Judge's Law Associate Serving on a Town Board

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp300-1.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 300

Conflict of Interest Board of Health Attorney Planning Board Attorney

This question asks us to decide on the ethical propriety of an attorney undertaking to be counsel to both the planning board and the board of health in the same municipality.

We have dealt with the conflicts of interest of attorneys for planning boards also acting for boards of adjustment in our Opinion 127, 91 N.J.L.J. 262 (1968), and Opinion 164, 92 N.J.L.J. 831 (1969), reconsidered and modified in Opinion 199, 94 N.J.L.J. 225 (1971).

In Opinion 67, 88 N.J.L.J. 81 (1965), we held that the attorney for a municipality should not at the same time function as attorney for the planning board, board of adjustment or board of health or any other agency of that municipality if there is or may be a conflict of interest in the matters to be dealt with. In Opinion 149, 92 N.J.L.J. 185 (1969), we held that the same ethical considerations precluded a municipal attorney's associate from acting as attorney for the planning board and again in Opinion 117, 90 N.J.L.J. 745 (1967), that a municipal attorney may not act as adviser to the planning board in preparation of the master plan. A lawyer should decline employment where the interests of a client may impair the attorney's independent professional judgment as to the affairs of a proposed client. DR 5-105.

This principle applies with particular force in cases of multiple representation of public boards or agencies for the reason that the public cannot give consent after full disclosure. Opinion 4, 86 N.J.L.J. 357 (1963), Opinion 29, 87 N.J.L.J. 106 (1964), Opinion 277, 97 N.J.L.J. 33 (1974).

The public is ill-served when upon the event of conflict an attorney for two agencies has to terminate his services as to both clients. Where the potential for conflict is reasonably clear, multiple representation should be refused.

Local boards of health organized under N.J.S.A. 26:3-1 et seq. are autonomous governmental agencies which exercise locally a portion of the police power of the State in public health matters. Grosso v. City of Paterson, 55 N.J. Super. 164, 150 A.2d 94 (1959). Nevertheless, appointments to membership are made pursuant to local governing body ordinances or, in first class cities, by the mayor with confirmation of the body having charge of finances. N.J.S.A. 26:3-5. And the local governing body has final say in the amount of money to be appropriated for local health purposes. N.J.S.A. 26:3-41. The general powers and duties of local boards of health are set out in N.J.S.A. 26:3-31 and include the regulation of water supplies, sanitary conditions of public eating places and the practice of plumbing. Nevertheless, board of health matters do not appear to be inherently in conflict with planning board matters. (Query whether a health board might be interested in the air pollution consequences of a slum clearance project?) In many jurisdictions the legal work for health boards is so limited that municipal attorneys are assigned to that work.

While reiterating the principles applied in the opinions above cited, it is the opinion of this Committee that a planning board attorney may also function as attorney to the local board of health except where a particular situation presents a conflict of interest, or where a clear potential for conflict is inherent in the actual functions of a particular board of health.