Can an attorney serve as municipal prosecutor in a town where his law partner is the attorney for the zoning board of adjustment?

Plain-English summary

The Committee was asked whether an attorney could hold the position of municipal prosecutor in a municipality where his partner served as attorney for the zoning board of adjustment. It first restated the imputation principle drawn from DR 5-105(D), its prior Opinions 182 and 277, and R. 1:15-4: if an attorney himself must decline employment because of a potential or actual conflict, no partner or associate may accept or continue that employment. So the question reduced to whether one attorney could properly hold both positions.

The Committee answered that a single attorney could not. It noted that in Opinion 91 it had declined to rule on incompatibility of offices but had suggested the dual role was improper both on logic and under N.J.S.A. 40:55-36.2 (repealed and reenacted in pertinent part as N.J.S.A. 40:55D-71), which requires the zoning board's attorney to be someone "other than the municipal attorney." Because a municipal prosecutor represents the municipality in its prosecutorial functions, the Committee treated him as a municipal attorney, citing State v. Zold and its Opinions 5, 8, 182, 239, and 287.

The Committee added that, while it generally would not rule on incompatibility of offices held by the same attorney, it was appropriate to rule where the question concerned partners. It observed that matters on which the board of adjustment's attorney ruled or advised might also be pertinent to proceedings within the municipal prosecutor's jurisdiction. On that basis, and on the general policy in statute, rule, and precedent, it held that it would be improper for a municipal prosecutor to be the partner of the attorney for the zoning board of adjustment.

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 imputation questions of this kind are now analyzed under RPC 1.7 and RPC 1.10. Treat this page as historical context, not current guidance.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 the same lawyer be both municipal prosecutor and zoning board attorney?

A: Under this opinion, no. A municipal prosecutor is a municipal attorney, and statute requires the zoning board's attorney to be someone other than the municipal attorney.

Q: Why does the prosecutor's partner have the same problem?

A: Because the disqualification of one partner is imputed to the others under DR 5-105(D), Opinions 182 and 277, and R. 1:15-4; if the prosecutor himself could not serve the zoning board, neither could his partner.

Q: Did the Committee identify an overlap between the two roles?

A: It observed that matters on which the zoning board's attorney ruled or advised might also be pertinent to proceedings within the municipal prosecutor's jurisdiction.

Background and rules framework

The opinion applied the imputation principle of DR 5-105(D) (with R. 1:15-4 and Opinions 182 and 277) to a statutory incompatibility under N.J.S.A. 40:55D-71, treating a municipal prosecutor as a municipal attorney. In current New Jersey terms, the conflict and imputation questions are governed by RPC 1.7 and RPC 1.10.

Citations and references

Rules of Professional Conduct:

• DR 5-105(D) (imputation of a conflict to partners and associates), as in effect 1977; now MR 1.10 / NJ RPC 1.10
• R. 1:15-4 (court rule on disqualification of partners), as in effect 1977
• General conflict principle now under MR 1.7 / NJ RPC 1.7

Statutes:

• N.J.S.A. 40:55D-71 (zoning board attorney must be other than the municipal attorney); formerly N.J.S.A. 40:55-36.2

Cases:

• State v. Zold, 105 N.J. Super. 194 (Law Div. 1969), aff'd o.b., 110 N.J. Super. 33 (App. Div. 1970), on the municipal prosecutor representing the municipality

Other opinions cited:

• NJ ACPE Opinions 5, 8, 67, 91, 117, 182, 239, 277, 287, 297, and 300

See also

• NJ ACPE Op. 452: Municipal Prosecutor Who Is the Partner of the Planning Board Attorney
• NJ ACPE Op. 389: Municipal Attorney/Prosecutor Partners; Spouse on the Zoning Board
• 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/acp366-1.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. 290, April 7, 1977

OPINION 366

Conflict of Interest
Municipal Prosecutor; Partner, Zoning Board Attorney

An attorney asks whether he may hold a position as municipal prosecutor in a municipality where his partner is an attorney for the zoning board of adjustment.

The disciplinary rules (DR. 5-105 (D), our prior opinions (e.g., Opinions 182 and 277) and the Rules of Court (R. 1:15-4) clearly express the holding that if an attorney himself is required to decline employment because of a potential or actual conflict, then no partner or associate of his may accept or continue such employment. Thus, the question presented may be couched in terms of whether it would be improper for one attorney to hold the two positions, i.e., municipal prosecutor and attorney for the zoning board of adjustment. In Opinion 91, we declined to rule on the question of whether an attorney for the zoning board of adjustment could also represent the municipality since it involved a question of incompatibility of offices which we felt was for the courts to decide and not this committee. We suggested in that case, however, that the dual representation would be improper on the basis of logic and of N.J.S.A. 40:55-36.2, since repealed but reenacted in pertinent part as N.J.S.A. 40:55D-71. This statute provides that an attorney for the zoning board must be someone "other than the municipal attorney." Clearly, a municipal prosecutor is a municipal attorney. He represents the municipality in prosecutorial functions. See State v. Zold, 105 N.J. Super. 194 (Law Div. 1969), affirmed o.b., 110 N.J. Super. 33 (App. Div. 1970), Opinions 5, 8, 182, 239, and 287.

We have also held that a municipal attorney may not act as advisor to the planning board (Opinion 117) and have questioned the propriety of a municipal attorney representing any other municipal agency (Opinion 67), holding there that such attorney could not represent any such agency in a case where there was an actual conflict, but declining to rule on the question of incompatibility of offices. We have, however, found that a municipal prosecutor's partner may, absent actual conflict, properly represent an adult community development corporation (Opinion 297), and that a planning board attorney may properly represent a board of health, in the same municipality (Opinion 300).

While there have been exceptions, we feel that, generally, we should not rule on a question of incompatibility of offices where it involves the same attorney. It is, however, appropriate to rule on the question where it relates to partners. In the present inquiry, it would appear that matters on which the attorney for the board of adjustment may have ruled or given advice to that board may also be pertinent to proceedings within the jurisdiction of the municipal prosecutor. On this basis, as well as on the basis of the general policy set forth in statute, rule and precedent, we believe it would be improper for a municipal prosecutor to be the partner of an attorney for the zoning board of adjustment.