Can an attorney who sits on a municipal zoning board of adjustment represent a private client in a lawsuit against that same municipality?

Plain-English summary

An attorney who was a member of a municipal zoning board of adjustment wanted to represent a private client in a suit against the municipality, seeking to block a final subdivision approval and to void a preliminary approval already granted by the planning board and the governing body. The inquirer noted that neither he nor his firm represented the municipality, and argued that suing it would not violate DR 8-101(A)(2), which forbids using a public position to influence a tribunal in favor of a client.

The Committee concluded the representation was improper. It located the problem not in the influence rule the inquirer raised, but in the fact that he was "part of the official family of the municipality." Proposing to represent an interest adverse to the municipality, the Committee reasoned, would let the public reasonably infer that there had been communication among adverse interests, and it pointed to DR 7-104(A) and to DR 9-101's concern with avoiding even the appearance of impropriety. It quoted EC 8-8: a lawyer who is a public officer "should not engage in activities in which his personal or professional interests are or foreseeably may be in conflict with his official duties."

Drawing on Opinion 70, the Committee restated that an attorney-member of a governing body owes a fiduciary relationship to the public, and that where public suspicion of impropriety is possible, the action should be avoided. It disapproved the proposed representation.

Currency note

This opinion was issued in 1976, 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 and appearance-of-impropriety concerns then in DR 7-104, DR 8-101, and DR 9-101 are now treated under RPC 1.7 and 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 Treat this page as historical context, not current guidance.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 zoning board of adjustment member sue his own municipality for a private client?

A: No. The opinion concluded the representation was improper because the attorney was part of the municipality's official family and suing it would create an appearance that adverse interests had communicated.

Q: Did it matter that the attorney's firm did not represent the municipality?

A: The Committee acknowledged that point but found it did not cure the problem. The disqualifying factor was the attorney's own membership on a municipal board, not whether his firm had the municipality as a client.

Q: Which rule did the inquirer rely on, and did the Committee agree it was the right one?

A: The inquirer relied on DR 8-101(A)(2) (use of public position to influence a tribunal). The Committee located the real problem instead in DR 7-104(A) and the appearance-of-impropriety concern of DR 9-101 and EC 8-8.

Background and rules framework

The opinion applied the public-officer conflict provisions then in force: DR 8-101 (use of public position), DR 7-104(A), and DR 9-101 (appearance of impropriety), read alongside EC 8-8. In current New Jersey terms, conflicts arising from a lawyer's public service are governed by RPC 1.7 (concurrent conflicts) and RPC 1.11 (government officers and employees).

Citations and references

Rules of Professional Conduct:

• DR 8-101(A)(2) (using a public position to influence a tribunal), as in effect 1976
• DR 7-104(A) and DR 9-101 (appearance of impropriety), as in effect 1976; now MR 1.7 / NJ RPC 1.7 and MR 1.11 / NJ RPC 1.11
• EC 8-8 (public officer's conflicting interests)

Other opinions cited:

• NJ ACPE Opinion 70, 88 N.J.L.J. 161 (1965)
• NJ ACPE Opinion 137, 91 N.J.L.J. 797 (1968)
• NJ ACPE Opinion 186, 93 N.J.L.J. 617 (1970)
• NJ ACPE Opinion 206, 94 N.J.L.J. 451 (1971)
• NJ ACPE Opinion 214, 94 N.J.L.J. 600 (1971)

See also

• NJ ACPE Op. 392: Municipal Judge's Firm Suing the Municipality
• NJ ACPE Op. 369: Committeeman Suing the Board of Education
• NJ ACPE Op. 349: Appealing a Conviction While Defending the Municipality
• NJ ACPE Op. 329: Leaving the State's Employ for a Firm Adverse to the State

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp322-1.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.

99 N.J.L.J. 126, February 12, 1976

OPINION 322

Conflict of Interest - Attorney Member of Adjustment Board Suing Municipality

An attorney who is a member of a municipal zoning board of adjustment desires to represent a private client in an action against the municipality to prevent the granting of a final subdivision approval. There had been a preliminary approval by the planning board and the mayor and council of the municipality, and the suit would also seek to declare the preliminary approval invalid.

The inquirer points out that neither he nor any of the other members of his law firm represents the municipality or any of its subdivisions. He believes that in suing the municipality he would not be violating DR 8-101(A)(2), which prohibits an attorney from using his public position to influence or attempt to influence a tribunal to act in favor of himself or a client. He also refers to EC 8-8.

The real problem lies in the fact that the inquirer is part of the official family of the municipality. He proposes to represent an interest adverse to it, and we believe the public could reasonably infer that there was some communication among adverse interests. Such communication is, of course, forbidden by DR 7-104(A). We call attention to DR 9-101, having to do with avoiding even the appearance of impropriety. The inquirer's reference to EC 8-8 is appropriate:

A lawyer who is a public officer, whether full or part-time, should not engage in activities in which his personal or professional interests are or foreseeably may be in conflict with his official duties.

In Opinion 70, 88 N.J.L.J. 161 (1965), dealing with the question of whether it was proper for an attorney who is a member of a governing body to represent a client in matters dealing with the exercise of ministerial or administrative acts by officers of the municipality, we said:

In the subject inquiry there is an attorney-member of a governing body engaged on behalf of the public in the pursuit of legislative and administrative duties on behalf of the public. Though not an attorney client relationship, there is a fiduciary relationship to the public.

We referred to the fact that, where the public interest is involved and the action contemplated by the attorney affords a chance for any public suspicion of impropriety, such action should be avoided.

While not precisely in point on the facts, we suggest that the inquirer also refer to Opinion 137, 91 N.J.L.J. 797 (1968); Opinion 186, 93 N.J.L.J. 617 (1970); and Opinion 206, 94 N.J.L.J. 451 (1971).

Accordingly, the proposed representation is disapproved.