Can an attorney appear before a municipal planning board when one of the board's voting members is a current or former client?

Plain-English summary

The Committee was asked whether an attorney may appear before a municipal planning board when a voting member of the board is either a past or present client of the attorney. It drew on its settled view that an attorney need not refuse employment merely because he may have to present his case before a relative; in that situation it is for the relative to remove himself from the deliberations, citing Opinion 136 and Kremer v. Plainfield.

The Committee pointed to its companion Opinion 360, where it had found no unethical conduct in a lawyer appearing before local boards even though his father, as mayor, participated in appointments and sat on the planning board. There it had stressed that the attorney must avoid the appearance of impropriety addressed by DR 9-101(C), which bars a lawyer from stating or implying that he can improperly influence a tribunal or public official, but concluded the relationship alone did not call for an inference of improper influence.

Applying the same reasoning, the Committee held that the attorney may appear before the planning board on a client's behalf even though a voting member is a past or present client. It assumed the attorney would set forth the facts on the record at the outset, after which the responsibility rests on the board member not to sit on a case unless free from both bias and the appearance of bias, citing ABA Opinion 200 (1940).

Currency note

This opinion was issued in 1977, 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 and appearance-of-impropriety questions of this kind are now analyzed under RPC 1.7; New Jersey abolished the separate appearance-of-impropriety standard in 2004. Treat this page as historical context, not current guidance.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 lawyer appear before a board whose member is the lawyer's client?

A: Under this opinion, yes. The Committee held the appearance is permissible; the burden shifts to the board member to step aside if not free from bias and its appearance.

Q: Does it matter whether the member is a current or only a former client?

A: No. The Committee applied the same rule to both a present and a past client of the attorney.

Q: What was the attorney expected to do?

A: The Committee assumed the attorney would set the facts on the record at the outset, leaving it to the board member to decide whether to sit.

Background and rules framework

The opinion applied the appearance-of-impropriety standard of DR 9-101(C), as developed in its Opinions 136 and 360 and in Kremer v. Plainfield, to a lawyer appearing before a board whose member is his client. In current New Jersey terms, the conflict question is governed by RPC 1.7.

Citations and references

Rules of Professional Conduct:

• DR 9-101(C) (not stating or implying ability to improperly influence a tribunal or official), as in effect 1977; now analyzed under MR 1.7 / NJ RPC 1.7

Cases:

• Kremer v. Plainfield, 101 N.J. Super. 346 (Law Div. 1968), on a lawyer appearing before a body that includes a relative

Other opinions cited:

• NJ ACPE Opinion 136, 91 N.J.L.J. 749 (1968); Opinion 360, 99 N.J.L.J. 1166 (1976)
• ABA Committee on Professional Ethics and Grievances, Opinion 200 (1940)

See also

• NJ ACPE Op. 360: Practicing Before Local Bodies Appointed by a Parent or Before a Parent Board Member
• NJ ACPE Op. 375: Judge Sitting Where Counsel Is the Brother of His Partner

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp363-1.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.

100 N.J.L.J. 10, January 6, 1977

OPINION 363

Practicing Before Planning Board Member, Present or Past Client

May an attorney appear before a municipal planning board when a voting member of the board is either a past or present client of the attorney?

We have always held that an attorney need not refuse employment because he may have to present his case before a relative. There, it is incumbent upon the relative to remove himself from the deliberations. Opinion 136, 91 N.J.L.J. 749 (1968), and Kremer v. Plainfield, 101 N.J. Super. 346 (Law Div. 1968). See also Drinker, Legal Ethics 72 and 277 (1961). More recently, we have found no unethical conduct where a lawyer represents clients before the local municipal court and local boards where his father, as mayor, participates in the appointment to these bodies and sits on the planning board. We stated that the attorney must take care to avoid the "appearance of impropriety" referred to in DR 9-101(C) which says:

A lawyer shall not state or imply that he is able to influence improperly or upon irrelevant grounds any tribunal, legislative body, or public official.

We concluded that although care must be taken in dealing with, or representing prospective clients before such municipal bodies, nevertheless, when an attorney's parent is the appointing power or participates in appointments, that relationship alone does not call for an inference of improper influence and the attorney may appear before the public boards whose members are appointed by his parent. Opinion 360, 99 N.J.L.J. 1166 (1976).

Likewise, and for the same basic reasons, we hold that the attorney may ethically appear before the planning board on behalf of a client even though a voting member of the board is either a past or a present client of the attorney. We would assume that the attorney would, at the outset, set forth the facts for the record of the case. Thereafter, the responsibility is on the member of the board not to sit on a case unless he is both free from bias and from the appearance thereof. See ABA Comm. on Professional Ethics and Grievances, Opinion 200 (1940).