Can the law partner of a New Jersey municipal attorney serve as a citizen member of the same municipality's planning board?

Plain-English summary

The Committee was asked whether a municipal attorney's law partner may accept appointment as a citizen member of the planning board of the same municipality. It recognized the benefits to a municipality from attorneys serving on its public bodies, and noted its general rule of "occasional disqualification," which lets an attorney participate in government provided he steps aside from any matter presenting a real or apparent conflict. It had applied that rule to permit, for example, an associate of a municipal judge to serve on the planning board and board of health (Opinion 315), and partners of municipal officials to serve as board of education counsel (Opinions 44 and 59), but in each case it stressed that the public bodies involved were autonomous and independent of one another, so conflict could arise only sporadically.

Here the relationship was different. Because the municipal attorney advises the governing body, the Committee examined the governing body's relationship to the planning board. Before the Municipal Land Use Law, it had held that neither a municipal attorney nor his partner should serve as planning board attorney "because the two bodies may entertain conflicting points of view" (Opinions 149 and 67), and that the municipal attorney should not advise the board in preparing its master plan (Opinion 117). The new Land Use Law (N.J.S.A. 40:55D-1 et seq.) preserves governing-body review of the planning board's recommendations on zoning, subdivision, site-plan, and official-map ordinances, so conflicting viewpoints on matters of fundamental importance remain possible, even probable.

The Committee reasoned that the municipal attorney might find himself regularly advising the body that sits in judgment on the merits of his partner's decisions as a planning board member, and that even with the partner serving as a lay member rather than paid attorney, the appearance of conflict lies in the public's expectation that the municipal attorney's advice would give greater weight to his partner's views. It distinguished Schear v. Elizabeth, which addressed compatibility of offices (conflict of duties) rather than conflict of interest and which itself warned of the ethical dangers of such dual office holding. Holding the interplay between the governing body and the planning board too active to allow the arrangement, the Committee concluded the partner of a municipal attorney should not serve on the same municipality's planning board.

Currency note

This opinion was issued in 1979, 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 the conflict and appearance-of-conflict principles then governing, against the Municipal Land Use Law (N.J.S.A. 40:55D-1 et seq.); in current New Jersey terms the conflict analysis corresponds to RPC 1.7. The cited statutes may since have been amended, and the appearance-of-impropriety standard has since been removed from New Jersey's rules. 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 attorney's partner sit on the planning board?

A: No. The opinion held the partner of a municipal attorney should not serve on the same municipality's planning board, because the interplay between the governing body and the planning board is too active.

Q: Does it matter that the partner serves as a lay member, not the board's attorney?

A: No. The opinion found that even as a lay member, the appearance of conflict lies in public expectation that the municipal attorney's advice would favor his partner's views on the board.

Q: How did the opinion treat Schear v. Elizabeth?

A: It distinguished Schear as deciding compatibility of offices (conflict of duties), and noted that Schear itself warned of the ethical dangers of conflict of interest in such dual office holding.

Background and rules framework

The opinion applied the "occasional disqualification" rule for attorneys in public service and the appearance-of-conflict principle, focused on whether the two public bodies are autonomous or stand in an active review relationship. Against the Municipal Land Use Law, it found the governing body's review of the planning board too active to permit the partnership. In current New Jersey terms the conflict analysis corresponds to RPC 1.7. The holding disqualified the partner from planning-board service.

Citations and references

Rules of Professional Conduct:

• MR 1.7 / NJ RPC 1.7 (conflict of interest; current clients)

Statutes:

• Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq. (esp. N.J.S.A. 40:55D-17a, 26, 30, 32)

Other opinions cited:

• NJ ACPE Opinions 28, 102, 395; 315; 44; 59; 300; 39; 149, 92 N.J.L.J. 185 (1969); 67, 88 N.J.L.J. 81 (1965); 117, 90 N.J.L.J. 745 (1967)

Cases:

• Schear v. Elizabeth, 41 N.J. 321 (1964)

See also

• NJ ACPE Op. 452: Municipal Prosecutor and a Partner on the Planning Board
• NJ ACPE Op. 449: County Lawyer Serving a Municipal Planning Board
• NJ ACPE Op. 437: A Charter Study Commissioner Appearing Against a Variance

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp430-1.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.

104 N.J.L.J. 25, July 12, 1979

OPINION 430

Conflict of Interest Municipal Attorney's Partner Serving on Planning Board

We are asked whether a municipal attorney's law partner may properly accept appointment as a citizen member of the planning board of the municipality.

This Committee has always recognized the special benefits flowing to a municipality from the service of attorneys on its public bodies. See Opinions 28, 87 N.J.L.J. 106 (1964), 102, 90 N.J.L.J. 1 (1967), and 395, 101 N.J.L.J. 432 (1978). Whenever possible, we have applied the rule of occasional disqualification to permit an attorney to participate in government with the understanding that he must step aside from any matter presenting a real or apparent conflict of interest. Thus in Opinion 315, 98 N.J.L.J. 822 (1975), we held that an associate of a municipal judge could properly serve as a citizen member of the planning board and of the board of health of the same municipality. In Opinion 44, 87 N.J.L.J. 297 (1964), we held that the partner of a municipal councilman could accept appointment as attorney for the board of education of that municipality, and in Opinion 59, 87 N.J.L.J. 741 (1964), that the partner of a municipal attorney could become counsel for the board of education serving the same municipality. See also, with respect to permissible dual public service by the same attorney, Opinions 300, 98 N.J.L.J. 126 (1975), and 39, 87 N.J.L.J. 191 (1964). In each such instance, however, we stressed that the public bodies involved were autonomous and independent of one another, so that a conflict of interest could arise only sporadically if at all.

Since the municipal attorney serves as legal advisor to the governing body, it is necessary to examine the relationship between the governing body and the planning board to ascertain the potential for real or apparent conflict when the municipal attorney and a planning board member are partners. Prior to the enactment of the new Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq. (L 1975, c. 291), we held that neither a municipal attorney nor his partner should serve as attorney for the planning board of the same municipality "because the two bodies may entertain conflicting points of view." Opinions 149, 92 N.J.L.J. 185 (1969), and 67, 88 N.J.L.J. 81 (1965). We also held that a municipal attorney should not act as advisor to the borough's planning board in preparation of its master plan, noting that "the prospect of differences of opinion as to policy between the planning board and governing body is not so remote as to be discounted...." Opinion 117, 90 N.J.L.J. 745 (1967). The new law makes significant changes in the role of municipal governing bodies in the land use process. However, the law also preserves the basic framework of review by the governing body of the planning board's recommendations with respect to zoning, subdivision, site plan and official map ordinances, as well as other municipal regulation of the use and development of land and capital improvement programs. N.J.S.A. 40:55D-26, 30 and 32. Thus it remains possible, if not probable, that the statutory relationship between the two bodies may engender conflicting viewpoints on matters of fundamental importance to the residents of the municipality. As we indicated in Opinion 117, supra, such differences of opinion might well raise legal questions to which the answers might vary depending upon the respective policies and approaches of the governing body and the planning board to their distinctive responsibilities. Accordingly, the municipal attorney might find himself in the position of regularly rendering legal advice to the body sitting in judgment on the merits of his law partner's decisions as a member of the planning board. In line with our earlier opinions on this subject, we believe that the interplay between the functions of the governing body and those of the planning board is too active to allow such an arrangement. Even though the inquirer's partner would be acting as a lay member of the planning board rather than as its paid attorney, the appearance of conflict could lie in public expectation that the municipal attorney's advice to the governing body would give greater weight to the views of his partner than to those of a board member with whom he had no private connection.

We should observe that the new Land Use Law also provides that if so permitted by ordinance, any interested party may appeal to the governing body from a final decision of the planning board on an application for development. N.J.S.A. 40:55D-17a. We are advised that the municipality involved here has not adopted an ordinance permitting such appeals, and thus we have not considered this provision in reaching our holding of disqualification. We merely note that in an appropriate situation, the appellate function of the governing body could in itself present another area of potential conflict.

Finally, we are referred by the inquirer to Schear v. Elizabeth, 41 N.J. 321 (1964), for the proposition that it is proper for a municipal attorney himself, and a fortiori his partner, to serve as a member of the planning board. But the Schear decision was concerned with the issue of compatibility of offices, i.e., whether there is a conflict of duties as opposed to a conflict of interests. In holding that no conflict of duties exists between the two offices as a matter of legislative intent, the Court went on to address the entirely different question of conflict of interests and expressly warned the bar against the ethical dangers inherent in such dual office holding by an attorney. 41 N.J. at 327-9. It is of course the problem of conflict of interest with which we are concerned, and we hold for the reasons stated above that the partner of a municipal attorney should not serve on the planning board of the same municipality.