Can the attorney for a township zoning board defend both the board and the municipality when a resident sues to challenge a variance?

Plain-English summary

The inquirer was the solicitor of a township zoning board. A resident had sued the board and the municipality, challenging a variance granted by the board and approved by the governing body. The question was whether the zoning board attorney could appear in the suit and defend both the board and the municipality.

The Committee found the situation analogous to DeLuca v. Kahr Brothers, Inc., 171 N.J. Super. 100 (Law Div. 1979), in which the court concluded that, because the three township bodies sued had mutual interests in defending the claims, had no grievances against each other, and could protect the municipal pocketbook with one defense, no conflict existed. The inquirer acknowledged that DeLuca would apply under the former DR 5-105, but asked whether RPC 1.7, which replaced DR 5-105, changes the result. The Committee held that it does not, and that under the circumstances no conflict exists. As the DeLuca court had, the Committee suggested that if a conflict develops in the future, withdrawal may be necessary, and that the possibility of future complications be explained fully to both defendants. It cautioned that it did not mean to hold there are no differences between DR 5-105 and RPC 1.7, only that under the circumstances presented the rules do not apply differently.

Currency note

This opinion was issued in 1985, before New Jersey's adoption of the 2004 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance.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 one attorney defend both a township and its zoning board in a variance challenge?

A: Yes, on these facts. The opinion held that where the two bodies share mutual interests in the defense and have no grievances against each other, no conflict exists.

Q: Did the switch from DR 5-105 to RPC 1.7 change the answer?

A: No. The opinion held RPC 1.7 does not change the conclusion reached under DR 5-105 in DeLuca, while cautioning that the two provisions are not identical in all respects.

Q: What should the attorney do if a conflict later arises?

A: Per the opinion, withdrawal may be necessary, and the possibility of future complications should be explained fully to both defendants at the outset.

Background and rules framework

The opinion applies RPC 1.7 (conflict of interest: general rule), which replaced former DR 5-105, to joint representation of related municipal bodies in litigation. The controlling analogy is DeLuca v. Kahr Brothers, Inc., 171 N.J. Super. 100 (Law Div. 1979), which permitted one defense of multiple township bodies with aligned interests.

Citations and references

Rules of Professional Conduct:

• MR 1.7 / NJ RPC 1.7 (conflict of interest: general rule)

Former disciplinary rule:

• DR 5-105 (refusing to accept or continue employment if the interests of another client may impair the lawyer's judgment)

Cases:

• DeLuca v. Kahr Brothers, Inc., 171 N.J. Super. 100 (Law Div. 1979) (one defense of multiple township bodies with mutual interests; no conflict)

See also

• NJ ACPE Op. 606: Regional Utilities Authority Counsel and a Municipal Zoning Board
• NJ ACPE Op. 607: Board of Adjustment Conflict When a New Partner Was Former Plaintiff's Counsel
• NJ ACPE Op. 628: Local PBA Attorney Representing a Zoning Board in the Same Municipality

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp561-1.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.

115 N.J.L.J. 615, May 23, 1985

OPINION 561

Conflict of Interest - Representation of Township and its Zoning Board of Adjustment in Litigation

The inquirer is the Solicitor of a township zoning board. A resident has instituted a suit against the board and the municipality challenging a variance granted by the board and approved by the governing body. The question posed is whether the zoning board attorney, under these circumstances, may appear in the suit and defend both the board and the municipality.

In an analogous situation, the Court in DeLuca v. Kahr Brothers, Inc., 171 N.J. Super. 100 (Law Div. 1979), concluded that since the three township bodies sued had mutual interests in defending the claims asserted, had no grievances against the other, and could protect the municipal pocketbook by one defense, no conflict existed.

The inquirer acknowledges that the DeLuca case would apply if DR 5-105 were still effective, but asks whether RPC 1.7, which replaced DR 5-105, changes the conclusion reached in that case. We are of the opinion that it does not, and that under the circumstances, no conflict exists. We suggest, as the Court in DeLuca did, that if a conflict develops in the future, withdrawal may be necessary; further, that the possibility of future complications be explained fully to both defendants.

By this Opinion, we do not intend to hold that there are no differences between DR 5-105 and RPC 1.7. We only hold that, under the circumstances presented here, the Rules do not apply differently.