Can a former township attorney who drafted a zoning ordinance amendment and defended it in court later represent the property owner who opposed it, in a variance application against that same amendment?

Plain-English summary

A former township attorney proposed to represent a property owner in seeking a variance from a zoning ordinance amendment. The wrinkle was the lawyer's own prior role: while serving as municipal attorney, he had participated in drafting that amendment, which concerned the use of certain private roads and which was prompted by a proposed use of a private road to provide access to a shopping center site. He then represented the municipality in defending the amendment in a lawsuit brought by the owner of that shopping center site. He now proposed to represent the same owner in applying for a variance from the very provision he had drafted, a provision designed to prevent the owner from using a private road for access.

The Committee applied DR 9-101(B), which provides that a lawyer shall not accept private employment in a matter in which he had substantial responsibility while a public employee. On these facts, the Committee found the inquirer had substantial responsibility as township attorney in a matter so closely related to the variance application that representing the applicant would create an appearance of impropriety, contrary to DR 9-101. It added that such representation might require the attorney to advance legal, factual, or public-policy positions inconsistent with those he had taken as township attorney in the earlier litigation. The Committee therefore concluded it would be improper for the inquirer to undertake the representation.

Currency note

This opinion was issued in 1978, 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. It applied DR 9-101(B), the rule on a former public employee's later private employment; in current New Jersey terms the successive-government-and-private-employment rule corresponds to RPC 1.11, and the freestanding appearance-of-impropriety standard the Committee invoked was removed 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 Treat this page as historical context, not current guidance.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 former government lawyer take a private case against a position he took in office?

A: Under this opinion, not where he had substantial responsibility in the same or a closely related matter as a public employee. The Committee barred the former township attorney from representing the variance applicant on that basis.

Q: What rule controlled?

A: DR 9-101(B), which provided that a lawyer shall not accept private employment in a matter in which he had substantial responsibility while a public employee.

Q: Why did the Committee stress the inconsistent positions?

A: It observed that representing the applicant might require the lawyer to advance legal, factual, or public-policy positions inconsistent with those he had taken as township attorney defending the amendment, reinforcing the appearance of impropriety.

Background and rules framework

The opinion applied DR 9-101(B), barring a lawyer from private employment in a matter in which he had substantial responsibility as a public employee, together with the appearance-of-impropriety standard then in force. It drew on the Committee's Opinions 258, 285, and 42. In current New Jersey terms, successive government-and-private employment is governed by RPC 1.11.

Citations and references

Rules of Professional Conduct:

• MR 1.11 / NJ RPC 1.11 (former government lawyer); DR 9-101(B) and the appearance-of-impropriety standard then in effect

Other opinions cited:

• NJ ACPE Opinion 258, 96 N.J.L.J. 751 (1973); Opinion 285, 97 N.J.L.J. 363 (1974); Opinion 42, 87 N.J.L.J. 285 (1964)

See also

• NJ ACPE Op. 381: Former Deputy Attorney General Joining a Firm Opposing the State
• NJ ACPE Op. 504: Former Municipal Defense Counsel Suing the Municipality
• NJ ACPE Op. 634: Former Prosecutor in a Civil Action Against an Indicted Defendant

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp388-1.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.

101 N.J.L.J. 120, February 9, 1978

OPINION 388

Conflict of Interest
Former Township Attorney
Representing Variance Applicant

A former township attorney who prepared a zoning ordinance amendment and defended its validity in a litigated case proposes to represent a property owner who was an adverse party in that litigation in seeking a variance from the provisions of the zoning ordinance amendment in question.

DR 9-101(B) provides that "[a] lawyer shall not accept private employment in a matter in which he had substantial responsibility while he was a public employee." In this instance, the inquirer indicates that, as municipal attorney, he participated in the drafting of an amendment to the municipal zoning ordinance concerning the use of certain private roads. This amendment was the result of the proposed use of a private road to provide access to a particular shopping center site. Subsequently, he represented the municipality in defending the zoning ordinance amendment in a law suit brought by the owner of the shopping center site. At this time, he proposes to represent the same owner in an application for a variance from the zoning ordinance provision which the inquirer drafted and which admittedly was designed to prevent the owner from using a private road to provide access to the shopping center. Accordingly, on the facts above, it appears that the inquirer had substantial responsibility while he was township attorney in a matter so closely related to the instant variance application that his representation of the applicant would create an appearance of impropriety, contrary to DR 9-101. See generally this Committee's Opinion 258, 96 N.J.L.J. 751 (1973); Opinion 285, 97 N.J.L.J. 363 (1974); and Opinion 42, 87 N.J.L.J. 285 (1964). Furthermore, such representation might require the attorney to advance legal, factual or public policy positions inconsistent with those he took as township attorney during the previous litigation. Therefore, we find it would be improper for the inquirer to undertake the representation described.