Can a township's municipal attorney review and approve deeds and easements that a developer must deliver to the township as a condition of planning board subdivision approval?

Plain-English summary

The inquirer was a township municipal attorney whose duties under the administrative code included preparing or approving all legal instruments relating to township business. The township had a planning board, which had no attorney and which the inquirer did not represent. The planning board often conditioned actions such as subdivision approval on delivery of a deed conveying land or an easement to the township, and the township manager referred such instruments to the municipal attorney for approval before acceptance; the attorney had also prepared and revised easement deeds the planning board required from a developer, charging the township and being paid by it. Under the land-subdivision ordinance, the township then sought reimbursement of those legal fees from the developer. A developer challenged the practice, arguing under Opinion 117 that the municipal attorney may not represent both the township and the planning board.

The Committee reiterated its consistent position, drawn from Schear v. Elizabeth and its Opinions 67, 117, 127, 149, and 164 (as modified by 199), that a municipal attorney cannot serve as attorney for any other board or agency of the same municipality if there is or may be a conflict of interest in a particular situation. It then distinguished the conduct at issue.

The Committee held that the municipal attorney's review, revision, or preparation of a deed of easement to the municipality required by the planning board incident to subdivision approval is not unethical, because in doing so he is properly representing the municipality, which is entitled to have its interests protected, and it saw no conflict. It expressly declined to opine on whether the municipality could require the developer to reimburse the attorney's fees, treating that as a matter of law outside its province.

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. Conflict questions for municipal attorneys serving multiple agencies are now analyzed under RPC 1.7. Treat this page as historical context, not current guidance.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 town attorney review deeds the planning board requires from developers?

A: Under this opinion, yes. The Committee held doing so is not unethical because the attorney is protecting the municipality's interests in property conveyed to it.

Q: Doesn't that make him the planning board's attorney too?

A: No. The Committee distinguished representing the municipality's interest in the deed from serving as the planning board's attorney, and the inquirer did not represent the board.

Q: Did the Committee address charging the developer for the fees?

A: No. It expressly declined to opine, treating the reimbursement question as a matter of law outside its province.

Background and rules framework

The opinion applied its consistent rule that a municipal attorney may not also serve another municipal agency where a conflict exists or may exist, drawn from Schear v. Elizabeth and Opinions 67, 117, 127, 149, and 164/199, and found no conflict in reviewing deeds running to the municipality. In current New Jersey terms, the conflict question is governed by RPC 1.7.

Citations and references

Rules of Professional Conduct:

• Conflict principles for municipal attorneys serving multiple agencies, as in effect 1976; now MR 1.7 / NJ RPC 1.7

Cases:

• Schear v. Elizabeth, 41 N.J. 321 (1964)

Other opinions cited:

• NJ ACPE Opinion 67, 88 N.J.L.J. 81 (1965); Opinion 117, 90 N.J.L.J. 745 (1967); Opinion 127, 91 N.J.L.J. 262 (1968); Opinion 149, 92 N.J.L.J. 185 (1969); Opinion 164, 92 N.J.L.J. 831 (1969), as modified by Opinion 199, 94 N.J.L.J. 225 (1971)

See also

• NJ ACPE Op. 353: Whether a Public Body Can Waive Its Attorney's Conflict
• NJ ACPE Op. 366: Municipal Prosecutor Who Is the Partner of the Zoning Board Attorney
• NJ ACPE Op. 430: Municipal Attorney Whose Partner Serves on the Planning Board

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp337-1.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. 588, July 1, 1976

OPINION 337

Municipal Attorney Reviewing Deeds Required by Planning Board

The inquirer is a township municipal attorney. The township's administrative code provides for the general administrative organization of the township government and states that among his duties the township attorney "shall prepare or approve all legal instruments relating to the business of the township."

The township has a planning board which does not have an attorney and which, the inquirer states, he does not represent. It is common for the planning board to condition some of its actions (such as the granting of a subdivision approval) upon the delivery of a deed to the township conveying land or an easement in land for road widening, utility or similar purposes. The township manager, upon receiving either drafts of the instruments or the executed instruments, refers them to the attorney for approval prior to acceptance by the township. The data submitted to this Committee indicate that the township attorney also prepared and revised deeds of easement to the township which were required from a developer by planning board action. The attorney charged the township for these services and was paid by it.

The township has a land subdivision ordinance which provides in part that all costs and expenses connected with an application for approval of a subdivision shall be charged to the developer in accordance with a fee schedule which, as to legal services, provides that the "developer shall be charged an amount equal to all expenditures made by the township for legal services rendered to the township in relation to an application for approval of a plan of subdivision." The township after payment of the attorney's bills for services requires reimbursement from the developer under the terms of the fee schedule.

A developer has challenged the township's practice of seeking reimbursement for the attorney's fee on the basis that under our Opinion 117, 90 N.J.L.J. 745 (1967), the township attorney may not represent both the township and the planning board. The inquiry is whether a municipal attorney may ethically review deeds and drafts of proposed deeds to the municipality required by the planning board and submitted by developers for approval and acceptance by the municipality and, if so, may he advise municipal administrative officers regarding them.

We have considered the potential danger of conflict of interest arising when the same attorney represents distinct but independent municipal agencies, which practice has been criticized by the Supreme Court in Schear v. Elizabeth, 41 N.J. 321 (1964). See our Opinions 127, 91 N.J.L.J. 262 (1968); 149, 92 N.J.L.J. 185 (1969); 164, 92 N.J.L.J. 831 (1969), as modified by 199, 94 N.J.L.J. 225 (1971). We reiterate what has been our consistent position. A municipal attorney cannot serve as attorney for any other board or agency of the same municipality if there is or may be a conflict of interest in a particular situation. See Opinions 67, 88 N.J.L.J. 81 (1965), and 117, supra.

The review, revision or preparation by the municipal attorney of a deed of easement to the municipality which a developer is required by the municipal planning board to execute and deliver incident to subdivision approval is not unethical. The attorney in such a case is properly representing the municipality which is entitled to have its interests properly protected. We see no conflict in this matter. The propriety of the municipality's requiring the developer to reimburse it for the municipal attorney's fees incident to the performance of his services involves a matter of law as to which we express no opinion.