If a board-of-adjustment member takes ad hoc legal work for the town, can he still represent private clients against the town?

Plain-English summary

The inquirer was a member of a town's board of adjustment, and the municipal attorney wished to refer him work ranging from advising the mayor and council to handling in rem tax foreclosure actions. He would serve as an independent contractor hired ad hoc, receive no benefits, not be titled "Assistant Town Attorney," and bill the town at his usual rate. He recognized he could not handle matters involving the board of adjustment, and argued (citing Opinions 428 and 640) that he was not part of the municipality's "official family."

The Committee disagreed. Because in both capacities, as a board member and ad hoc attorney, he would represent the town, there was no conflict between the two positions (citing Opinions 573 and 466). But it distinguished Opinions 428 and 640: in those cases the attorney was chosen by an insurance company or paid from an insurance fund, so the public would not associate him with the municipal government. Here, by accepting the ad hoc role and on occasion advising the mayor and council, the attorney becomes part of the "official family."

As a result, the Committee held, he will be barred from taking any matters adverse to the town before local town boards or municipal offices, including the municipal court. It referred to Opinion 294 for discussion of how long that ban continues.

Currency note

This opinion was issued in 1990, before New Jersey's adoption of the 2004 revisions to the Rules of Professional Conduct; the appearance-of-impropriety standard the opinion applied was eliminated from the New Jersey Rules effective January 1, 2004. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule mentioned here.

Common questions

Q: Does taking ad hoc legal work for the town make a board member part of the "official family"?

A: Per the opinion, yes. The Committee held that by accepting the ad hoc special-attorney role and occasionally advising the mayor and council, the attorney becomes part of the official family, even though he is an independent contractor hired ad hoc and not titled "Assistant Town Attorney."

Q: What does official-family status prohibit?

A: He is barred from taking any matters adverse to the town before local town boards or municipal offices, including the municipal court.

Q: Why didn't the insurance-defense opinions help the inquirer?

A: The Committee distinguished Opinions 428 and 640, where the attorney was chosen by an insurance company or paid from an insurance fund (not part of the official family); here the attorney was retained directly by the town and might advise its governing body.

Background and rules framework

The opinion applied the official-family conflict and appearance-of-impropriety standard (NJ RPC 1.7(c)(2); Model Rule 1.7). It relied on Opinions 573 and 466 (no conflict between board membership and town representation), distinguished Opinions 428 and 640 (insurer-chosen attorneys), and cited Opinion 294 on the duration of the bar.

Citations and references

Rules of Professional Conduct:

• MR 1.7 / NJ RPC 1.7(c)(2) (conflict; appearance of impropriety, since eliminated)

Other opinions cited:

• NJ ACPE Op. 573 (116 N.J.L.J. 271) and Op. 466 (106 N.J.L.J. 518), no conflict in dual town roles
• NJ ACPE Op. 428 (104 N.J.L.J. 1) and Op. 640 (125 N.J.L.J. 894), insurer-chosen attorneys
• NJ ACPE Op. 294 (97 N.J.L.J. 993), duration of the official-family bar

See also

• NJ ACPE Op. 640: Insurer-Retained Town Defense Counsel and Private Practice
• NJ ACPE Op. 641: Library Board Counsel's Private Practice
• NJ ACPE Op. 662: Municipal Attorney Serving as Municipal Prosecutor

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp646-1.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.

126 N.J.L.J. 1486, November 29, 1990

OPINION 646

Conflict of Interest: Member of Board of Adjustment Accepting Contract Work as Special Attorney

The Inquirer is a member of a board of adjustment and the municipal attorney of that town wishes to refer matters to him. He will represent the town providing there is no conflict of interest. Such matters, we are told, will "range from advising the Mayor and Council of the Town ... to handling In Rem tax foreclosure actions." Under his arrangement with the municipal attorney, he will be an independent contractor hired on an ad hoc basis and he will receive no employee benefits. He will not be designated as "Assistant Town Attorney." He will bill the town for services at his usual rate.

The Inquirer recognizes, of course, that he may not be involved in any matters involving the board of adjustment. Since in both capacities, as a board member and ad hoc attorney, he will be representing the town, there is no conflict in the two positions. See Opinion 573, 116 N.J.L.J. 271 (1985) and Opinion 466, 106 N.J.L.J. 518 (1980).

The Inquirer believes that, in connection with his representation of the town on an ad hoc basis, he is not part of the "official family of the municipality." This, despite the fact that he may be called upon as noted above, to advise the mayor and council. He cites for his authority our Opinion 428, 104 N.J.L.J. 1 (1979) and Opinion 640, 125 N.J.L.J. 894 (1990). However, the factual situations in those inquiries differ from those presented by the Inquirer.

In Opinion 428, supra, 104 N.J.L.J. 1, the question posed was whether an attorney representing municipalities and their employees through an insurance company may represent private clients in unrelated matters before a planning board, board of adjustment or other governmental bodies of that municipality. We held that the Inquirer was not truly a municipal attorney in the sense of being a member of the official family appointed to his position by the governing body. Rather, he was an attorney chosen by the insurance company for the purpose of representing the municipal body in a particular matter. We concluded that the proposed representation of private clients before the municipal bodies was proper.

Similarly, in Opinion 640, supra, 125 N.J.L.J. 894, the municipality was self-insured and the inquiring attorney was being asked to defend the municipality only in tort matters for which he would be paid from the insurance fund and not from the municipality's general budget. We held that, as in the situation where an attorney has been retained by an insurance company, there is little likelihood that the public would associate such an attorney so closely with the municipal government as to give rise to any appearance of a conflict of interest insofar as the attorney's private municipal practice is concerned. Citing our Opinion 428, supra, 104 N.J.L.J. 1, we concluded that the inquirer was not a member of the official family and could represent private clients before municipal boards.

In the present inquiry, in accepting the position of an ad hoc attorney for the town, and on occasion perhaps advising the mayor and council, the attorney becomes a part of the "official family." As such, he will be barred from taking any matters adverse to the town before local town boards or municipal offices, including the municipal court. For discussion as to how long this ban will continue, see our Opinion 294, 97 N.J.L.J. 993 (1974).