Can a lawyer who serves on a municipal parking authority represent private clients in that municipality's municipal court or before its other agencies?

Plain-English summary

An attorney serving as a member of a municipal parking authority asked whether he could represent private clients in the municipal court of the same municipality, or before any other governmental agency of the municipality, so long as his appearance would not conflict with his responsibilities to the parking authority. The authority's members are appointed by the municipality.

The Committee acknowledged that under the statute (N.J.S.A. 40:11A-1 et seq.) a municipal parking authority is largely autonomous, but noted that the authority is by statute an agency and instrumentality of the municipality or county creating it (N.J.S.A. 40:11A-4), and that the authority may call on the municipality's chief law officer or employ its own counsel (N.J.S.A. 40:11A-5). In these circumstances the Committee concluded that an attorney-member of a municipal parking authority cannot properly represent private clients before the municipal court or any other public agency of that municipality. It pointed to R.1:26-3(d), which prohibits an attorney who is a member of the governing body of a municipality from practicing before its municipal court, and analogized the case of a municipal clerk who is an attorney, identified in the public eye with the affairs of the municipality.

A member of a parking authority, the Committee said, is likewise identified in the public eye with the affairs of the municipality in general, and should avoid retainers where he is, or may appear to be, opposing action by the municipality on behalf of a private client. As with a municipal attorney representing a private client before a municipal agency, the losing litigant or the public would be troubled by the suspicion that the adversary's success was attributable to his position or influence as a municipal official.

Currency note

This opinion was issued in December 1964, before New Jersey's September 13, 1971 adoption of the Disciplinary Rules (Code of Professional Responsibility), and well before the 1984 Rules of Professional Conduct and all later revisions. It applied the conflict principles of the former Canons of Professional Ethics and the court rule then designated R.1:26-3(d). Conflicts of interest are now treated under RPC 1.7. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or court-rule citation mentioned here.

Common questions

Q: Can a lawyer on a municipal parking authority appear for private clients in that town's municipal court?

A: No. The Committee held that an attorney-member of a municipal parking authority cannot properly represent private clients before the municipal court of that municipality.

Q: What about appearing before the town's other agencies?

A: That is also barred. The Committee said the attorney-member cannot represent private clients before the municipal court or before any other public agency of that municipality.

Q: Does it matter that a parking authority is largely autonomous?

A: No. Although the Committee recognized the authority's statutory autonomy, it noted the authority is by statute an agency and instrumentality of the municipality, so the member is still identified in the public eye with the affairs of the municipality.

Background and rules framework

The opinion applied the conflict-of-interest principles of the former Canons of Professional Ethics, the parking-authority statute (N.J.S.A. 40:11A-1 et seq.), and the court rule R.1:26-3(d) barring a member of a municipal governing body from practicing before its municipal court. In current New Jersey terms, the conflict analysis falls under RPC 1.7.

Citations and references

Rules and statutes (as cited by the opinion):

• R.1:26-3(d) (attorney who is a member of a municipal governing body may not practice before its municipal court)
• N.J.S.A. 40:11A-1 et seq.; 40:11A-4 (parking authority as agency and instrumentality of the municipality); 40:11A-5 (counsel)

Cases:

• Broadway National Bank of Bayonne v. Parking Authority of Bayonne, 40 N.J. 227 (N.J. 1963), parking-authority autonomy

Other opinions cited:

• N.J. ACPE Opinion 4, 86 N.J.L.J. 357 (1963); Opinion 37, 87 N.J.L.J. 190 (1964); Opinion 52, 87 N.J.L.J. 610 (1964)

See also

• NJ ACPE Op. 88: Attorney Member of a Zoning Board, Scope of Representation
• NJ ACPE Op. 96: Attorney on a Municipal Reassessment Committee
• NJ ACPE Op. 111: Attorney Police Officer, Effect of Retirement
• NJ ACPE Op. 113: PBA Attorney, Conflict of Interest

Source

• Landing page: https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp64-1.html

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

87 N.J.L.J. 801
December 17, 1964

OPINION 64

Conflict of Interest
Member of Municipal Parking Authority

An attorney serving as a member of a municipal parking authority inquires whether he may properly represent other clients in the municipal court of the same municipality or before any other governmental agency of the municipality as long as his appearance would not conflict with his responsibilities to the parking authority. The members of the authority are appointed by the municipality.

While we are aware that under the statute (N.J.S.A. 40:11A-1 et seq.) a municipal parking authority is largely autonomous in nature (see Broadway National Bank of Bayonne v. Parking Authority of Bayonne, 40 N.J. 227 (1963)), nevertheless, the authority is by statute "an agency and instrumentality of the municipality or county creating it" (N.J.S.A. 40:11A-4). The statute provides that the authority may call upon the chief law officer of the municipality for legal services or may employ its own counsel (N.J.S.A. 40:11A-5).

In these circumstances, we believe that an attorney-member of a municipal parking authority cannot properly represent private clients before the municipal court or before any other public agency of that municipality. R.1:26-3(d) prohibits an attorney who is a member of the governing body of any municipality from practicing before its municipal court.

The same principle is equally applicable to the case of a municipal clerk who is an attorney. As such clerk, he is identified in the public eye with the affairs of the municipality in general.

In the same sense, a member of a municipal parking authority is identified in the public eye with the affairs of the municipality in general. He should avoid retainers from others where he is, or may appear to be, opposing action by the municipality on behalf of a private client.

Just as in the case of a municipal attorney representing a private client before a municipal agency, the losing litigant or the public in general will be troubled by the suspicion that his adversary's success in the matter was attributable to his position or influence as a municipal official. See N.J. Advisory Committee on Professional Ethics, Opinion 4, 86 N.J.L.J. 357 (1963); Opinion 37, 87 N.J.L.J. 190 (1964); Opinion 52, 87 N.J.L.J. 610 (1964), and the other opinions cited therein.