Can an attorney who sits as an unpaid member of a regional planning board represent residents in court challenging an ordinance of a municipality that belongs to that board?

Plain-English summary

The inquiry asked whether an attorney who is a member of a regional planning board may represent a citizens' group seeking to overturn an ordinance passed by a municipality that is a constituent member of that board, and whether it matters if he handles the action with or without a fee. The Committee disposed of the fee question first: because the concern is the propriety of the representation, whether the attorney charges a fee is immaterial to whether the representation itself is proper.

On the main question, the Committee noted the board is composed of representatives of several governmental bodies, is advisory only with no rulemaking or regulatory authority, and had itself opposed the ordinance on environmental grounds. The inquirer did not represent the municipality whose ordinance was challenged; he served as an unpaid member of the board and had already presented the board's position at the municipal hearing. The residents then approached him about a court challenge.

The Committee saw no ethical problem in his handling the challenge. It reasoned that he is not the attorney for the board but serves as a member without fee. There would be an appearance of impropriety if he appeared before the board, which he could not do, but appearing in court to oppose a municipality on the validity of an ordinance does not raise the same appearance, especially because the representation aligned with the board's own policy. The Committee found former Disciplinary Rule 8-101(A)(1), addressing a lawyer who uses public office to accomplish an act not in the public interest, inapplicable, and likewise found RPC 1.11(b) inapplicable to the inquiry.

Currency note

This opinion was issued in 1985, before New Jersey's adoption of the 2004 revisions to the Rules of Professional Conduct (which abolished the freestanding "appearance of impropriety" standard discussed here). 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 Treat this page as historical context, not current guidance.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: Does an unpaid public board membership bar an attorney from suing a member municipality?

A: Not on these facts. The opinion saw no ethical problem in an unpaid regional planning board member bringing a court challenge to a constituent municipality's ordinance, where he was not the board's attorney and the challenge aligned with the board's position.

Q: Where is the line the attorney may not cross?

A: Appearing before the board itself. The opinion stated that doing so would create an appearance of impropriety, which he could not do, while appearing in court against the municipality did not raise the same appearance.

Q: Does it matter whether he takes a fee for the court challenge?

A: No. The opinion held the fee immaterial, because the question is the propriety of the representation, not how it is compensated.

Background and rules framework

The opinion applies RPC 1.11(b) (a lawyer's public service and the appearance of impropriety) and the former Disciplinary Rule 8-101(A)(1) (lawyer holding public office), finding neither implicated on these facts. The analysis turns on the attorney's role as an unpaid board member rather than as the board's counsel, and on the alignment of the challenge with the board's own position.

Citations and references

Rules of Professional Conduct:

• MR 1.11 / NJ RPC 1.11(b) (public service; appearance of impropriety)

Former disciplinary rule:

• DR 8-101(A)(1) (lawyer holding public office; using public position for an act not in the public interest)

See also

• NJ ACPE Op. 620: Partner of Planning Board Counsel as Utilities Authority Counsel
• NJ ACPE Op. 606: Regional Utilities Authority Counsel and a Municipal Zoning Board
• NJ ACPE Op. 571: Bond Counsel Representing Private Clients Before the Same Municipality

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp572-1.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.

116 N.J.L.J. 271, August 22, 1985

OPINION 572

Conflict of Interest - Attorney Member of Regional Planning Board Representing Client in Litigation Against Municipal Constituent of Board

This inquiry asks whether an attorney who is a member of the Regional Planning Board can represent a citizens group which seeks to overturn an ordinance passed by a municipality, which is a constituent member of the Regional Planning Board. The inquirer also asks whether it is material if he handles the action with or without a fee.

The second question is easily disposed because the basic concern here is determination of the propriety of the representation. Whether the attorney charges a fee for such representation is immaterial to the question as to whether the representation of the client is proper or improper.

With regard to the main question, the inquirer supplements his facts by stating that the Board is composed of representatives of several Government bodies and that he does not represent the municipality whose ordinance is to be challenged. The Regional Planning Board, which is an advisory board with no rule making or regulatory authority, has opposed the ordinance on environmental grounds, and the inquirer has presented the position of the Regional Planning Board at the municipal hearing. He has now been approached by the residents of the municipality with respect to a court challenge of the ordinance. We see no ethical problem in his handling the challenge to the ordinance. He is not the attorney for the Regional Planning Board, but rather serves as a member without fee. There would be an appearance of impropriety should he appear before that Regional Planning Board and that, of course, he cannot do, but to appear in court opposing a municipality with respect to the validity of an ordinance does not raise the same appearance of impropriety. Former Disciplinary Rule 8-101(A)(l) refers to a lawyer who holds public office and uses his public position to try to accomplish an act not in the public interest. That rule is not applicable to the present inquiry. Representation of the residents of the municipality in opposition to the ordinance is in line with the policy of the Regional Planning Board, and there appears to be no inconsistency raised by the inquiry. R.P.C. 1.11 (b) does not appear to be applicable to the inquiry either.