Can a New Jersey lawyer who serves on a municipal charter study commission also represent private clients before that municipality's boards?

Plain-English summary

The inquirer, elected to a municipal charter study commission, asked whether he could appear for property owners in the same municipality opposing a variance application. The Committee, addressing the status of such a commissioner for the first time, found no conflict of interest. It reviewed the commission's statutory framework (N.J.S.A. 40:69A-1 et seq.) and concluded the charter study commission is an elected, autonomous body, neither under the control of nor a part of the municipal "official family." Its task is to prepare a report for the citizens, lodged with the municipal clerk; it is discharged if it recommends no change in the form of government, and remains until an election if it recommends change.

The Committee contrasted situations where an attorney represents an agency or board appointed by the municipality and then appears before another municipal board for a private client, which it had repeatedly found improper (Opinions 4, 5, 18, 19, 20, 24, and the parking-authority line in Opinions 52 and 64). In those cases the body was an agency or instrumentality of the municipality, and the official is identified in the public eye with the municipality's affairs, so the losing litigant or public could suspect that the adversary's success came from his municipal position or influence.

The Committee held those considerations absent here. A charter study commission is in no way an agency under the control of the municipality; it is completely autonomous. It analogized to Opinion 41 (attorney for an elected board of education, an autonomous body, may represent clients before municipal boards). Accordingly, there was no conflict, and no appearance of conflict, in the commissioner's proposed representation.

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-impropriety principles then governing (Canon 6 of the Canons of Professional Ethics); in current New Jersey terms the conflict analysis corresponds to RPC 1.7, and the statutes cited (N.J.S.A. 40:69A-1 et seq.) may since have been amended. Treat this page as historical context, not current guidance.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: Could the charter study commissioner appear against a variance for private clients?

A: Yes. The opinion found no conflict, because a municipal charter study commission is an elected, autonomous body, not part of the municipal "official family."

Q: Why did this differ from the parking-authority cases?

A: A parking authority is, by statute, an agency and instrumentality of the municipality, so its attorney or member is identified with the municipality's affairs. A charter study commission is fully autonomous and not under municipal control.

Q: What analogous body did the opinion rely on?

A: An elected board of education (Opinion 41), which the Committee treated as autonomous and separate from the municipality, so its attorney could appear before municipal boards.

Background and rules framework

The opinion applied the rule that a lawyer identified with a municipal agency may not appear for private clients before other municipal bodies, and turned the analysis on whether the body served is an arm of the municipality or an autonomous entity. In current New Jersey terms the conflict analysis corresponds to RPC 1.7. The holding was that a charter study commission's autonomy placed the commissioner outside the conflict rule.

Citations and references

Rules of Professional Conduct:

• MR 1.7 / NJ RPC 1.7 (conflict of interest; current clients)
• Canons of Professional Ethics, Canon 6 (as in effect 1979)

Statutes:

• N.J.S.A. 40:69A-1 et seq. (municipal charter study commission)

Other opinions cited:

• NJ ACPE Opinion 41, 87 N.J.L.J. 286 (1964) (autonomous board of education); Opinions 4, 5, 18-20, 24; Opinion 52, 87 N.J.L.J. 610 (1964); Opinion 64, 87 N.J.L.J. 801 (1964)

Cases:

• Botkin v. Westwood, 62 N.J. Super. 416 (App. Div. 1968)

See also

• NJ ACPE Op. 449: County Lawyer Serving a Municipal Planning Board
• NJ ACPE Op. 430: A Municipal Attorney's Partner Serving on the Planning Board

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp437-1.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. 417, November 8, 1979

OPINION 437

Conflict of Interest Municipal Charter Study Commissioner Municipal Practice

The inquirer was elected a member of a municipal charter study commission and wants to know if while so acting, can appear for property owners in the same municipality in opposing an application for a variance. We have not previously decided the status of a member of a municipal charter study commission. We see no conflict of interest. The procedure for the election to the charter study commission and the powers and duties of the commission set forth in N.J.S.A. 40:69A-1, et seq. It is clear that the charter study commission is an elected autonomous body and is neither under the control, nor a part, of the municipal "official family." It must prepare a report for the citizens of the municipality, by lodging it with the municipal clerk, and if the commission recommends no change in form of government, it will be discharged; if the commission recommends a change, it will remain in office until an election or the issue is otherwise resolved.

In Opinion 41, 87 N.J.L.J. 286 (1964), the question involved the propriety of an attorney for an elected board of education representing individual clients before the various boards of the municipality in which the school district is located. We decided that under the facts stated there appears to be no conflict:

A board of education elected by the people under Chapter 7 is clearly autonomous and is not a part of the municipality in which it is located. It is a separate body and is a distinct entity from the municipal government. Neither has any right to interfere with the other. See Botkin v. Westwood, 62 N.J. Super. 416 (App. Div. 1968). The conflict which is apparent when an attorney represents an agency or board appointed by a municipality and appears before another board or agency of the municipality on behalf of a private client or represents clients against the municipality itself has already been determined. See Canons of Professional Ethics, Canon 6 and this Committee's Opinions 4, 86 N.J.L.J. 367 (1963); 5, 86 N.J.L.J. 361 (1963); 18, 19 and 20, 86 N.J.L.J. 734 (1963); and 24, 87 N.J.L.J. 19 (1964).

This decision is contrasted with our Opinion 52, 87 N.J.L.J. 610 (1964), where we decided that an attorney serving as counsel to a municipal parking authority could not properly represent other clients in the municipal court of the same municipality. There the members of the authority were appointed by the mayor and they, in turn, appointed the attorney as their counsel. We stated that a municipal parking authority is largely autonomous in nature but, nevertheless, by statute it is an agency and instrumentality of the municipality creating it. The statute provides that the authority may call upon the chief law officer of the municipality for legal services or employ its own counsel. We further said that the underlying considerations supporting the governing principle could be found in Opinion 4, 86 N.J.L.J. 357 (1963), and in Opinion 64, 87 N.J.L.J. 801 (1964), where we said that an attorney member of a municipal parking authority could not properly represent private clients before the municipal court or before any other public agency of that municipality.

The same principle is equally applicable to the case of a municipal clerk who is an attorney. As such clerk, he is identified in the public eye with the affairs of the municipality in general. In the same sense, a member of a municipal parking authority is identified in the public eye with the affairs of the municipality in general. He should avoid retainers from others where he is, or may appear to be, opposing action by the municipality on behalf of a private client. Just as in the case of a municipal attorney representing a private client before a municipal agency, the losing litigant or the public in general will be troubled by the suspicion that his adversary's success in the matter was attributable to his position or influence as a municipal official.

Such considerations do not exist in the present case. In no way is a municipal charter study commission an agency, and under the control of the municipality in which the members were elected to serve. It is completely autonomous. Hence there is no conflict, nor appearance of conflict, in this case.