Can a New Jersey planning board attorney resign, represent a private client before that board, and then return to the board attorney post?

Plain-English summary

An attorney serving as borough planning board attorney became involved with a group of residents seeking to build a nonprofit senior-citizens housing project. For a time he represented both the planning board and the senior citizens group, disqualifying himself from advising the board on matters directly affecting the project. When the housing corporation was ready to submit its subdivision and site-plan application, he resigned as board attorney and represented the corporation before the board; after approvals were obtained and a developer's agreement negotiated, his replacement resigned and he was reappointed board attorney after about six months out of the post. Days later he corresponded with the mayor and council about the project, prompting concern about the propriety of his conduct.

The Committee restated the settled rule that an attorney may not represent the senior citizens group while in office as the planning board attorney, citing DR 9-101(B), DR 5-105(A) and (B). Drawing on Opinion 281, it explained that counsel in these situations must choose: either represent the autonomous public agency (and thereby preclude themselves and their firms from practicing before the various town bodies) or decline that representation and appear for private clients before the municipal bodies.

The Committee expressly declined to opine on whether the reappointment was proper, treating that as a question of law. It nonetheless strongly disapproved the practice of representing a public body, resigning to represent a private client, and then returning to the public body a short time later, stating that under the best of circumstances the public is disserved by such a practice.

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. It applied DR 5-105 and DR 9-101(B); the conflict and former-government-officer principles it discussed now correspond broadly to RPC 1.7 and 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 Treat this page as historical context, not current guidance.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: Could the lawyer represent the housing group while serving as board attorney?

A: No. The opinion held that an attorney may not represent the senior citizens group while in office as the planning board attorney, citing DR 9-101(B) and DR 5-105(A) and (B).

Q: Did the opinion say the reappointment was illegal?

A: No. The Committee expressly declined to opine on whether the reappointment was proper, treating that as a question of law outside its charge.

Q: What did the Committee say about the resign-then-return maneuver?

A: It strongly disapproved of representing a public body, resigning to represent a private client, and then returning to the public body shortly after, stating the public is disserved by the practice.

Background and rules framework

The opinion applied the conflict and public-agency principles then stated in DR 5-105 and DR 9-101(B), as developed in Opinion 281, which framed the choice counsel must make between serving an autonomous public agency and appearing for private clients before municipal bodies. In current New Jersey terms, the conflict rule corresponds to RPC 1.7 and the former-government-officer rule to RPC 1.11. The Committee's holding was that simultaneous representation was barred, that the legality of the reappointment was a question of law it would not decide, and that the resign-and-return practice was strongly disapproved.

Citations and references

Rules of Professional Conduct:

• MR 1.7 / NJ RPC 1.7 (conflict of interest; current client)
• MR 1.11 / NJ RPC 1.11 (former and current government officers and employees)
• DR 5-105(A), (B); DR 9-101(B) (as in effect 1980)

Other opinions cited:

• NJ ACPE Opinion 281, 97 N.J.L.J. 362 (1974) (counsel must choose between the public agency and private clients before town bodies)
• NJ ACPE Opinion 388, 101 N.J.L.J. 120 (1978)

Cases:

• Ahto v. Weaver, 39 N.J. 418 (1963)
• 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. 504: Former Municipal Workers' Comp Defense Counsel Suing the Municipality

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp451-1.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. 177, February 28, 1980

OPINION 451

Conflict of Interest - Planning Board Attorney - Resigned to Represent Senior Housing Corporation before Board - Then Reappointed Board Attorney

An attorney was appointed to the position of borough planning board attorney. Sometime thereafter, while still occupying the position of planning board counsel he became involved with a group of residents seeking to construct a large, nonprofit housing project for senior citizens. For a period of time he represented both the planning board and the senior citizens group. Since the municipality was preparing a new master plan and development regulations during this time, the planning board had to consider senior citizens housing and make recommendations pertaining thereto to the mayor and council. The attorney, however, disqualified himself from advising the planning board on any matters directly affecting the senior citizens project. When the Senior Citizens Housing Corp. was ready to submit its application for a subdivision and site plan approval for the project, the attorney resigned his position as planning board attorney and proceeded to represent the Senior Citizens Housing Corp. before the planning board. All necessary approvals were expeditiously obtained and a developer's agreement was negotiated between the Housing Corporation and the governing body by the attorney on behalf of the senior citizens and by the borough attorney. Shortly after the execution of the developer's agreement, the attorney's replacement in the planning board position resigned and the senior citizens' attorney succeeded in being reappointed as the planning board attorney after an absence from the position of about six months. Several days after his reappointment, the attorney had occasion to correspond with the mayor and council concerning the proposed housing project. Because he wrote to the Council as the attorney for the Senior Citizens Housing Corp. at the time when he was also planning board attorney, the borough manager and several member of the Council expressed a concern over the propriety of the attorney's conduct in the matter.

Inquirer asks whether the recent reappointment of the attorney as planning board attorney was proper since vouchers for professional services of the attorney must be signed by members of the governing body, two of whom serve as members of the planning board. He also asks what the effect of this appointment might be upon the future relationship between the Senior Citizens Housing Corp. and the borough.

It is clear that the attorney may not represent the senior citizens group while he is in office as the planning board attorney. DR 9-101(B), DR 5-105(A) and (B). We have also held that while he represents a senior citizens housing association created by the municipality, he may not appear for other clients before municipal bodies. Opinion 281, 97 N.J.L.J. 362 (1974). In that opinion we said: Counsel in these cases must make a choice as to whether they desire to represent the autonomous agency and thus preclude the practice by themselves and members of their firms before the various town bodies or whether they believe it to be more to their advantage to decline representation of the agency and represent private clients before the various municipal bodies. See also Opinion 388, 101 N.J.L.J. 120 (1978), Ahto v. Weaver, 39 N.J. 418 (1963), cited in Schear v. Elizabeth, 41 N.J. 321 (1964). In the case before us the attorney has attempted to avoid this stricture by resigning as planning board attorney to represent the Housing Corporation substantially to the completion of its application and then returning to representation of the planning board. We express no opinion on the question of whether the reappointment of the attorney as planning board attorney in the circumstances described is proper since this is a question of law. We strongly disapprove, however, of the practice of representation of a public body followed by the attorney resigning for the purpose of representing a private client with a subsequent return portly thereafter to representation of the public body. Under the best of circumstances the public is disserved by such a practice.