Can a lawyer serve as counsel to a municipal housing agency while an associate in the firm sits on the same town's council?

Plain-English summary

The inquirer served as counsel to a Municipal Affordable Housing Agency, which was established by ordinance to keep designated housing units affordable to and occupied by low- and moderate-income households. The five-member agency includes one elected member of the municipal council; the council appoints the agency's members and designates its chairperson, and the agency appoints and pays its own counsel. An associate in the inquirer's part-time employ had been elected to the municipal council (though not as the council's designated agency member).

The Committee reasoned that in a municipality where housing may be scarce, councilpersons are apt to assert political pressure on the agency and its counsel in favor of constituents seeking such housing. Because the council appoints the agency and the agency appoints the inquirer as its counsel, both are subject to possible political pressures. The inquirer cited Opinions 177 and 192 as distinguishable, but the Committee found them applicable and their conclusions apposite. It held that as long as the associate serves on the council and is part of the inquirer's law firm, an appearance of impropriety prohibits the inquirer from serving as counsel for the agency.

Currency note

This opinion was issued in 1991, 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 Treat this page as historical context, not current guidance.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: Can the lawyer keep the agency counsel role if a firm associate is on the council?

A: No. Per the opinion, while the associate sits on the council and is part of the firm, the appearance of impropriety prohibits the inquirer from serving as counsel to the housing agency.

Q: Why does the associate's council seat matter?

A: Because the council appoints the agency and the agency appoints its counsel, the Committee reasoned that in a municipality where housing is scarce, councilpersons may bring political pressure on the agency and its counsel, leaving both subject to possible political pressure.

Q: Did it matter that the associate was not the council's designated agency member?

A: The Committee noted the associate was not the council's designated agency member but still found the appearance of impropriety controlling, citing Opinions 177 and 192 as apposite.

Background and rules framework

The opinion applied the then-existing appearance-of-impropriety standard (NJ RPC 1.7(c)(2); Model Rule 1.7's conflict principles) to overlapping municipal roles within a single law firm. It relied on the Committee's earlier Opinions 177 and 192.

Citations and references

Rules of Professional Conduct:

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

Other opinions cited:

• NJ ACPE Op. 177 (93 N.J.L.J. 241)
• NJ ACPE Op. 192 (94 N.J.L.J. 44)

See also

• NJ ACPE Op. 655: Town Lawyer Representing Officials' Private Matters
• NJ ACPE Op. 662: Municipal Attorney Serving as Municipal Prosecutor
• NJ ACPE Op. 707: Board of Education Member as Municipal Attorney

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp656-1.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.

129 N.J.L.J. 1060, December 9, 1991

OPINION 656

Conflict of Interest: Associate of Attorney for Municipal Affordable Housing Agency Serving as Councilman in the Same Municipality

The inquirer states that he serves as attorney for a Municipal Affordable Housing Agency (Agency) and has held that position for almost three years. The purpose of the Agency is "to assure that housing units designated for occupancy by low and moderate income households remain affordable to, and occupied by, low and moderate income households."

The Agency, which was established by ordinance of the municipality, is comprised of five members, one of whom is an elected member of the municipal council, and two alternates. The municipal council appoints the members of the agency and designates one member to serve as chairperson. Counsel is appointed by the Agency and is paid from its own funds in an amount set by the Agency.

The inquirer says that an associate was employed by his office two years ago on a part-time basis. The associate, as of this year, was elected a member of the municipal council, but is not the designated member of the council who serves as a member of the Agency.

It requires no great omniscience to see that in a municipality where housing may be scarce, political pressures by councilpersons are apt to be asserted upon members of the Agency and its counsel in favor of their constituents who desire this type of housing. The municipal council appoints the Agency and the latter appoints the inquirer as its counsel, and both are therefore subject to possible political pressures.

The inquirer cites Opinion 177, 93 N.J.L.J. 241 (1970) and Opinion 192, 94 N.J.L.J. 44 (1971) but states that they are distinguishable from his situation. Reference to these opinions makes it apparent that they are applicable. While the situations are different, the conclusions there are apposite to this inquiry.

As long as the inquirer's associate serves on the council and is part of inquirer's law firm, there is an appearance of impropriety which prohibits him from serving as counsel for the Agency.