Can a part-time municipal solicitor represent a developer operating in the municipality, or buyers and sellers of property there?

Plain-English summary

A part-time municipal solicitor asked whether he could represent a buyer of realty within the municipality he serves, and whether he could represent a developer of property within the municipality in matters unrelated to the property being developed.

On the developer question, the Committee relied on Opinion 90 and the Supreme Court's decision In the Matter of A and B, Attorneys at Law, which held that land development is an area where the likelihood of transactions with a municipality and the room for public misunderstanding are so great that a member of the bar should not represent a developer operating in a municipality in which he is the municipal attorney. The Committee concluded the solicitor likewise may not represent a developer within the municipality on the sale of unrelated property, nor represent the developer in selling the developed property after municipal approvals are granted.

That proscription, however, does not bar the municipal attorney or solicitor from representing the purchaser or seller in the sale of a developed single-family house within the municipality, or of commercial or industrial property that would not require municipal approval. The Committee cautioned that great discretion is required as to vacant land or any property for which further development requiring municipal-agency approval could reasonably be anticipated. Because an attorney must avoid even the appearance of impropriety, and a public officer should not engage in activities in which his interests may foreseeably conflict with his official duties (DR 9-101), the Committee held that if there is any possibility of foreseeable development or the need for municipal approvals, the solicitor should not accept the employment.

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 (DR 9-101), which New Jersey eliminated from its conflict rules in 2004; 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 Treat this page as historical context, not current guidance.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 a municipal solicitor represent a developer who operates in his municipality?

A: No. The opinion held he may not, even on matters unrelated to the property being developed, following Opinion 90 and In the Matter of A and B.

Q: Can he handle an ordinary house or commercial-property closing in the town?

A: Yes. The opinion permitted representing the buyer or seller of a developed single-family house, or of commercial or industrial property requiring no municipal approval.

Q: What about vacant land or property that might be developed?

A: The opinion required great discretion and said that if there is any possibility of foreseeable development or a need for municipal approvals, the solicitor should not accept the employment.

Background and rules framework

The opinion applied the appearance-of-impropriety doctrine (DR 9-101) to a part-time public officer, drawing on Opinion 90 and the Supreme Court's In the Matter of A and B. The dividing line is whether the property transaction could foreseeably require municipal approvals or development the solicitor's office would touch. 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); appearance of impropriety, DR 9-101 (as applied 1978)

Cases:

• In the Matter of A and B, Attorneys at Law, 44 N.J. 331 (1965)
• In re Dolan, 76 N.J. 1 (1978)

Other opinions cited:

• NJ ACPE Opinion 90, 89 N.J.L.J. 241 (1966); Opinion 322, 99 N.J.L.J. 126 (1976)

See also

• NJ ACPE Op. 409: Hiring a Town's Former Assistant Attorney Onto the Opposing Firm
• NJ ACPE Op. 465: Municipal Attorney's Fees From a Developer in Condemnation Proceedings

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp401-1.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.

102 N.J.L.J. 80, July 27, 1978

OPINION 401

Conflict of Interest - Municipal Solicitor Representing Developers and Land Purchasers

The inquirer, a part-time municipal solicitor, has requested an opinion on the propriety of his representing a buyer of realty within the municipality for which he is solicitor, and the propriety of representing a developer of property within the municipality in matters unrelated to the property being developed.

The latter question was answered in Opinion 90, 89 N.J.L.J. 241 (1966), where we held that a municipal attorney may not represent a client in matters in another municipality if that same client has a substantial development project in the municipality in which the municipal attorney serves. Similarly, the inquirer may not represent a developer within the municipality on the sale of property unrelated to the property being developed, nor should he represent the developer in the sale of the developed property after all municipal approvals have been granted.

The Supreme Court of this State has dealt with municipal attorneys representing developers in In the Matter of A and B., Attorneys at Law, 44 N.J. 331 (1965). There, the Court held that the subject of land development is one in which the likelihood of transactions with a municipality and the room for public misunderstanding are so great that a member of the bar should not represent a developer operating in a municipality in which the member of the bar is the municipal attorney. Id. at 334.

This proscription would not, however, prohibit a municipal attorney or city solicitor from representing the purchaser or seller in the sale of a developed single-family house within the municipality, nor should it prohibit him from representing the purchaser or seller of commercial or industrial property which would not require municipal approval. Great discretion is required, however, as to vacant land or any piece of property as to which it could reasonably be anticipated that further development would be necessary, involving the approval of municipal agencies. An attorney must avoid even the appearance of impropriety, and an attorney who is a public officer, whether full or part-time, should not engage in activities in which his personal or professional interests are, or foreseeably may be, in conflict with his official duties. DR 9-101, Opinion 322, 99 N.J.L.J. 126 (1976). Therefore, if there is any possibility of development of the property in the foreseeable future or the necessity for municipal approvals of one sort or another, the municipal attorney or solicitor should not accept the employment. Cf. In re Dolan, 76 N.J. 1 (1978).