Can a lawyer join a municipal planning board when a partner in the lawyer's firm is the board's attorney, if the lawyer recuses on the attorney's appointment and pay?

Plain-English summary

An associate of a law firm asked whether he could accept appointment to a planning board for which one of the firm's partners served as attorney, provided he disqualified himself from any discussion of the appointment or payment of the planning board attorney.

The Committee said no. It pointed to Opinion 189, setting out the governing principles for attorneys' relationships with governmental agencies, and Opinion 186, which held it improper for an attorney to represent a zoning board where his partner is a member of the same municipality's governing body, and which had emphasized that disqualifying the board member does not resolve the issue. Here, where the firm's partner is the attorney for the very board to which the associate seeks appointment, the Committee found the impropriety even more apparent.

The Committee distinguished Opinion 136, in which it had approved an attorney's representation of a planning board where his uncle was a member of that board; that approval, it said, was not in conflict and did not control this inquiry.

Currency note

This opinion was issued in 1978, before New Jersey's 1984 replacement of the Disciplinary Rules by the Rules of Professional Conduct and the later revisions to those rules. It rested on the now-abandoned "appearance of impropriety" standard governing attorneys and governmental bodies; in current New Jersey terms the analysis corresponds to RPC 1.7 and the public-officer provisions of RPC 1.11. Treat this page as historical context, not current guidance.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 lawyer join the board if he recuses on the board attorney's appointment and pay?

A: No. The opinion held that disqualifying himself from those matters does not resolve the impropriety of joining a board his firm's partner counsels.

Q: Why was this impropriety "even more apparent"?

A: Because the firm's partner was the attorney for the very board the associate sought to join, a closer link than in the related situations the Committee had previously addressed.

Q: Wasn't there an opinion allowing a relative on the board?

A: Yes, Opinion 136 approved representing a board where the attorney's uncle was a member, but the Committee held that was not in conflict and did not control this firm-partner situation.

Background and rules framework

The opinion applied the appearance-of-impropriety principles governing attorneys and governmental agencies from Opinions 189 and 186 to an associate joining a board his firm's partner counsels, holding recusal insufficient. In current New Jersey terms the analysis corresponds to RPC 1.7 and RPC 1.11.

Citations and references

Rules of Professional Conduct:

• MR 1.7 / NJ RPC 1.7 (conflicts of interest)
• MR 1.11 / NJ RPC 1.11 (special conflicts for government officers and employees)

Other opinions cited:

• NJ ACPE Opinion 189, 93 N.J.L.J. 789 (1970); Opinion 186, 93 N.J.L.J. 617 (1970); Opinion 136, 91 N.J.L.J. 749 (1968); Opinion 70, 88 N.J.L.J. 161 (1965)

See also

• NJ ACPE Op. 395: A Lawyer Serving on a County Advisory Board
• NJ ACPE Op. 415: Office Relationships Between Municipal and County Counsel
• NJ ACPE Op. 392: A Municipal Judge's Firm Suing the Municipality

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp390-1.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. 183, February 23, 1978

OPINION 390

Conflict of Interest - Associate of Planning Board Attorney Member of Board

An associate of a law firm asks whether he may accept appointment to a planning board for which one of the partners is attorney, provided he disqualifies himself from discussion on the appointment or payment for the services of the planning board attorney.

In our Opinion 189, 93 N.J.L.J. 789 (1970), we set forth the governing principles that should guide attorneys in their relationships with governmental agencies. In Opinion 186, 93 N.J.L.J. 617 (1970), we held it improper for an attorney to represent a zoning board where his partner is a member of the governing body of the same municipality. We pointed out that disqualification of the board member does not resolve the issue. And see the reasoning in our Opinion 70, 88 N.J.L.J. 161 (1965). Here, where the partner of the firm is the attorney for the board to which his associate seeks an appointment, the impropriety is even more apparent. Our approval of the representation of a planning board by an attorney whose uncle was a member of that board, Opinion 136, 91 N.J.L.J. 749 (1968), is not in conflict, and does not control this inquiry.