Can the law partner of a municipal planning board's counsel serve as counsel to the municipal utilities authority in the same township?

Plain-English summary

The inquirer's law partner represented a municipal planning board, and the inquirer asked whether he could accept a position as counsel to the municipal utilities authority within the same township. The Committee reaffirmed the basic test from Opinion 67: an attorney, or a law partner or associate of an attorney, cannot serve as an attorney for any board or agency of the same municipality if there is or may be a conflict of interest in a particular situation.

The inquirer argued that, because some of the utility authority's solid-waste activities may be preempted by state regulation, the planning board has no power over the utilities authority and so no conflict exists. The Committee rejected that reasoning. It observed that utilities authorities engage in a variety of activities not preempted by state statute and properly subject to municipal oversight, and that even as to preempted activities, the exchange of "information" and "recommendations" between the utilities authority and the planning board still constitutes a significant degree of interaction between agencies discharging distinct public responsibilities.

The Committee concluded that the traditional principles protecting the public interest would still apply to the proposed dual role.

Currency note

This opinion was issued in 1988, before New Jersey's adoption of the 2004 revisions to the Rules of Professional Conduct, which abolished the "appearance of impropriety" standard underlying conflict opinions of this era. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule mentioned here.

Common questions

Q: Can one firm supply counsel to two different boards in the same municipality?

A: Per the opinion, not where there is or may be a conflict. The Committee reaffirmed that "an attorney, or law partner or associate of an attorney, cannot serve as an attorney for any board or agency of the same municipality if there is or may be a conflict of interest in a particular situation."

Q: Does state preemption of some utility activities eliminate the conflict?

A: No. The Committee found that utilities authorities engage in many non-preempted activities subject to municipal oversight, and that the information-and-recommendations interaction with the planning board persists even for preempted activities.

Background and rules framework

The opinion applies the Committee's longstanding municipal-conflict test rather than a numbered Rule of Professional Conduct, drawing on Opinion 67. The analysis turns on whether the two municipal bodies have, or may have, interacting responsibilities that create the potential for conflict, which the Committee found present despite the inquirer's preemption argument.

Citations and references

Other opinions cited:

• ACPE Opinion 67, 88 N.J.L.J. 81 (1965) (an attorney or partner cannot serve two municipal boards where a conflict may exist)

See also

• NJ ACPE Op. 697: Municipal Agency Counsel and a Private Client Conflict
• NJ ACPE Op. 707: Board of Education Member Serving as Municipal Attorney
• NJ ACPE Op. 662: Municipal Attorney Serving the Same Municipality as Municipal Prosecutor

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp620-1.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.

122 N.J.L.J. 1246, November 10, 1988

OPINION 620

Conflict of Interest - Partner of Counsel to Municipal Planning Board as Counsel to Municipal Utilities Authority Within the Same Township

The law partner of the inquirer represents a municipal planning board. The inquirer asks whether he is able to accept a position as counsel to the municipal utilities authority within the same township.

This Committee has consistently dealt with similar or nearly identical inquiries by reaffirming the basic test that an attorney, or law partner or associate of an attorney, "cannot serve as an attorney for any board or agency of the same municipality if there is or may be a conflict of interest in a particular situation." Opinion 67, 88 N.J.L.J. 81 (1965). (Emphasis supplied).

The inquirer suggests that because the regulation of some of the utility authority's activities in the solid waste area may be preempted by state regulation, there is no municipal planning board power over the municipal utilities authority and, therefore, no possible conflict.

The Committee observes that utilities authorities are empowered to engage in a variety of activities which are not preempted by state statute and are properly a matter of municipal oversight and regulation. Furthermore, even as to the preempted activities, the provision of "information" to the municipal planning board and the receipt of "recommendations" which the utilities authority may subsequently accept or reject still constitute a significant degree of interaction between agencies discharging two quite distinct sets of public responsibilities, and thus the traditional principles protecting the public interest would still appear to apply.