Can a planning board's attorney advise the board on a matter in which he has a personal or financial interest if the board and the applicant both consent?

Plain-English summary

An attorney for a municipal planning board asked whether he could advise the board on a matter in which he might have a financial, property, or personal interest within DR 5-101(A), where both the applicant to the board and the board itself were fully acquainted with his interest and had consented. He asked whether that consent would cure the defect as DR 5-101(A) allows for private parties.

The Committee acknowledged the inquirer's familiarity with its settled rule, drawn from Opinions 4, 187, and 208, that the consent of a public body is unavailable to cure a conflict arising from the interests of two opposing parties. The question here was whether the same rule applies where the conflict is between the attorney's own personal interest and the public interest. The Committee answered that it does.

Where the public interest is involved, the Committee held, an attorney may not represent conflicting interests even with the consent of all concerned, citing Ahto v. Weaver and Schear v. Elizabeth, the latter discussing N.J.S.A. 40:55-1.4, which bars a planning board member from acting on any matter in which he has a direct or indirect personal or financial interest. The Court had said the rule must be applied with sensitive regard for the public interest, and that conflicts are subject to closer scrutiny and more stringent limitation where the duties of a public office call for an attorney's services. Seeing no reason to depart from the general rule, the Committee held the inquirer should not advise the planning board on a matter in which he has a personal, financial, business, or property interest.

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. Personal-interest conflicts, formerly governed by DR 5-101(A), are now analyzed under RPC 1.7, whose consent provisions differ. Treat this page as historical context, not current guidance.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 public body consent to waive its attorney's personal-interest conflict?

A: Under this opinion, no. The Committee held the consent that cures such a conflict between private parties is unavailable when the consent must come from a public body.

Q: Did it matter that both the applicant and the board knew of and accepted the interest?

A: No. The Committee held that where the public interest is involved, an attorney may not represent conflicting interests even with the consent of all concerned.

Q: What sources did the Committee rely on?

A: Its Opinions 4, 187, and 208 and the decisions in Ahto v. Weaver and Schear v. Elizabeth, the latter applying N.J.S.A. 40:55-1.4.

Background and rules framework

The opinion extended the rule that a public body's consent cannot cure an opposing-parties conflict to a personal-interest conflict under DR 5-101(A), drawing on N.J.S.A. 40:55-1.4 and the Schear and Ahto decisions. In current New Jersey terms, personal-interest conflicts are governed by RPC 1.7.

Citations and references

Rules of Professional Conduct:

• DR 5-101(A) (declining employment where the lawyer's own interests may affect his judgment; private-party consent provision), as in effect 1976; now MR 1.7 / NJ RPC 1.7

Statutes:

• N.J.S.A. 40:55-1.4 (planning board member barred from acting where he has a direct or indirect personal or financial interest)

Cases:

• Ahto v. Weaver, 39 N.J. 418 (1963)
• Schear v. Elizabeth, 41 N.J. 321 (1964)

Other opinions cited:

• NJ ACPE Opinion 4, 86 N.J.L.J. 357 (1963); Opinion 187, 93 N.J.L.J. 649 (1970); Opinion 208, 94 N.J.L.J. 454 (1971)

See also

• NJ ACPE Op. 355: A Freeholder's Partner as Assistant County Counsel
• NJ ACPE Op. 351: Municipal Attorney Representing a Police Officer at a Probable-Cause Hearing
• 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/acp353-1.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. 862, September 23, 1976

OPINION 353

Conflict of Interest
Waiver by Public Body

An attorney for a municipal planning board asks whether he may advise the board on a matter in which he may have a financial, property or personal interest within the purview of DR 5-101(A). He apparently has the consent of the applicant to the planning board and the board itself, both being fully acquainted with the circumstances of the attorney's interest. He asks whether such consent would cure the defect as provided in DR 5-101(A).

The inquirer is acquainted with the rule stated repeatedly by this Committee (see Opinions 4, 86 N.J.L.J. 357 (1963); 187, 93 N.J.L.J. 649 (1970); and 208, 94 N.J.L.J. 454 (1971), inter alia) that consent of a public body is unavailable to cure a conflict which arises out of the interests of two opposing parties. His inquiry is whether that same rule applies where the conflict arises between the attorney's own personal interest and the public interest. The answer is that it does.

Where the public interest is involved, an attorney may not represent conflicting interests, even with the consent of all concerned. See Ahto vs. Weaver, 39 N.J. 418 (1963), cited in Schear v. Elizabeth, 41 N.J. 321 (1964). In the latter case, the Court discussed that statutory provision of N.J.S.A. 40:55-1.4, specifically requiring that "[n]o member of the planning board shall be permitted to act on any matter in which he has, either directly or indirectly, any personal or financial interest." The Court stated that the rule must be applied to the facts, of a particular case, with a sensitive regard to the public interest, and that where the duties of a public office call for services of an attorney, possible areas of conflict are subjected to even closer scrutiny and more stringent limitation.

There is no reason in this case to depart from the general rule that the consent of the parties, which would be available to cure a conflict within the meaning of DR 5-101(A) as to private parties, is unavailable where the consent required is that of a public body. The inquirer should not advise the planning board in a matter as to which he has a personal, financial, business, or property interest.