Can a part-time county legal assistant in New Jersey also serve as counsel to a municipal planning board in the same county?

Plain-English summary

The inquirer, a part-time legal assistant in a county law department, asked whether he could also serve as counsel to a municipal planning board in that same county, saying he could conceive of no situation that would create a conflict. The Committee noted that the planning-board enabling statute, N.J.S.A. 40:55D-24, requires planning-board counsel to be "other than the Municipal Attorney," reflecting an intent that board counsel be completely disassociated from the municipality's legal representative.

The Committee explained the structural overlap: under the County Planning Act (N.J.S.A. 40:27-7), local authorities must submit plats to the County Planning Board for approval, and the county board may withhold approval unless certain facilities are provided (N.J.S.A. 40:27-12). Presumably the county planning board, if it needed legal representation, would look to the county legal department of which the inquirer is a member, and the Committee said the result would be the same even if the county board had its own separate county-employed counsel.

Drawing on Opinions 262, 54, and 8, which require public counsel to avoid not only actual conflicts but situations that could be construed as conflicting with duties to the public body, the Committee held that a conflict could arise if the county planning board disapproved the action of the municipal planning board as a matter of law. Though it called the probability remote, it noted such county-municipal conflicts have arisen before, and concluded the inquirer cannot hold both positions.

Currency note

This opinion was issued in 1980, 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. The conflict principles it applied now correspond broadly to RPC 1.7. The statutes it cited (N.J.S.A. 40:55D-24, 40:27-7, 40:27-12) 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 Treat this page as historical context, not current guidance.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 lawyer hold both the county and municipal-board positions?

A: No. The opinion concluded the inquirer cannot serve as a county legal assistant and as municipal planning board counsel in the same county, because the roles could conflict.

Q: Where could the conflict come from?

A: The county planning board can disapprove a municipal board's plat as a matter of law; if it did, the lawyer would be on both sides of that dispute. The opinion found that possibility, though remote, sufficient.

Q: Did it matter that the lawyer saw no actual conflict?

A: No. The opinion restated that public counsel must avoid not only actual conflicts but situations that could be construed as conflicting with duties to the public body.

Background and rules framework

The opinion applied the rule that a lawyer for a public body must avoid both actual conflicts and situations that could be construed as conflicting with that body's interests, as developed in Opinions 8, 54, and 262, and read it against the statutory relationship between county and municipal planning boards. In current New Jersey terms the conflict analysis corresponds to RPC 1.7. The holding was that the structural possibility of a county-versus-municipal board dispute barred the same lawyer from both roles.

Citations and references

Rules of Professional Conduct:

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

Statutes:

• N.J.S.A. 40:55D-24 (planning-board counsel must be other than the municipal attorney)
• N.J.S.A. 40:27-7; N.J.S.A. 40:27-12 (County Planning Act; plat approval)

Other opinions cited:

• NJ ACPE Opinion 8, 86 N.J.L.J. 718 (1963); Opinion 54, 87 N.J.L.J. 689 (1964); Opinion 149, 92 N.J.L.J. 185 (1969); Opinion 164, 92 N.J.L.J. 831 (1969); Opinion 262, 96 N.J.L.J. 1150 (1973); Opinion 415, 103 N.J.L.J. 38 (1979)

See also

• NJ ACPE Op. 452: Municipal Prosecutor and a Partner on the Planning Board
• NJ ACPE Op. 451: A Board Attorney Who Resigned, Took a Private Client, Then Returned
• NJ ACPE Op. 460: Regional Sewerage Authority Counsel and Municipal Counsel as Partners

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp449-1.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.

105 N.J.L.J. 119, February 7, 1980

ADVISORY COMMITTEE ON PROFESSIONAL ETHICS

Appointed by the New Jersey Supreme Court

OPINION 449

Conflict of Interest County Legal Assistant - Also for Municipal Planning Board Counsel

Request is made for an opinion as to whether a person who is a part-time legal assistant in a county law department can also serve as counsel to a municipal planning board in that same county. He says that he can conceive of no situation in which there would be a conflict between the two positions and, therefore, sees no incompatibility. N.J.S.A. 40:55-D 24 states that the planning board may engage counsel but that such counsel must be "other than the Municipal Attorney." Obviously, it was intended that the attorney for the planning board should be completely disassociated from the legal representative of the municipality. Under the statute, N.J.S.A. 40:27-7, (County Planning Act), it is provided with respect to matters involving the county that "local authorities before approving any plat must submit the same to the County Planning Board for approval" and if the latter does not act within 20 days from the submission, the act of the local authorities shall be deemed approved. The County Planning Board is appointed by the board of chosen freeholders of the county. One member of the planning board is the director of the board of freeholders, another is the county engineer, and another is a member of the board of freeholders. The other members are citizens at-large. The duties of the planning board are outlined in the statute and the board does have authority to withhold approval of any plat submitted by a municipality unless certain facilities are provided for. N.J.S.A. 40:27-12.

Presumably, although the statute does not so provide, that county planning board, if it needed legal representation, would seek it from the county legal department of which the inquirer is, of course, a member. But, even if the county planning board were to have its own counsel, who would also be a county employee like the inquirer, the result we arrive at would be the same.

In Opinion 262, 96 N.J.L.J. 1150 (1973), relating to attorneys for county school boards, which boards are autonomous, we said that such an attorney was a member of the official family of the county and his actions must be viewed in that context. Despite the inquirer's statement, there could be a conflict if the county planning board disapproved the action of the municipal planning board as a matter of law. While the probabilities of this may be remote, conflicts between local and county boards have arisen in the past and it cannot be said with any degree of certainty that they will not arise in the future. What we said in Opinion 54, 87 N.J.L.J. 689 (1964), bears repeating here: This case provides a clear example of what was pointed out in N.J. Advisory Committee on Professional Ethics, Opinion 8, 86 N.J.L.J. 718 (1963), that counsel in matters involving the public business must not only be extremely careful to avoid any situation which actually involves a conflict of interest, but also must avoid any situation which could be construed to be in conflict with his duties and responsibilities to the municipality.

In Opinion 149, 92 N.J.L.J. 185 (1969), we discussed the question of an associate of a municipal attorney being attorney to the planning board and in Opinion 164, 92 N.J.L.J. 831 (1969), we had the question of an attorney representing both the board of adjustment and the planning board in the same municipality. While the factual situation is different here, we think the reasoning of those two opinions is apposite. We believe that the finding herein is consistent with the decision of the Supreme Court in Opinion 415, 103 N.J.L.J. 38 (1979). It is our opinion, therefore, that the inquirer cannot hold both positions.