Can a municipal attorney also serve as attorney for the planning board, zoning board, or other boards in the same municipality?

Plain-English summary

The inquiry asked whether a municipal attorney could also be the attorney for the planning board, the zoning board of adjustment, or the health and education boards in the same municipality. The Committee analyzed it under Canon 6, which bars representing conflicting interests, that is, where it is the lawyer's duty on behalf of one client to contend for what his duty to another client requires him to oppose.

The Committee pointed to authority showing that these municipal bodies often hold conflicting points of view. It cited judicial criticism of a municipal attorney representing the zoning board of adjustment (Dolan v. DeCapua; Wilson v. Long Branch), noted that the law reports are replete with cases where the governing body, planning board, and board of health took conflicting positions, and cited Botkin v. Westwood for the proposition that a board of education is an autonomous body with which the municipality may not interfere. It also quoted its own Opinion 4 on the common-law rule that one may not hold incompatible offices, where the test is whether two offices are incompatible in their natures, rights, duties, or obligations.

The Committee concluded that a municipal attorney cannot serve as attorney for any board or agency of the same municipality if there is or may be a conflict of interest in a particular situation. It expressly declined to opine on whether holding both representations is incompatible in every case.

Currency note

This opinion was issued in February 1965, 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 Canon 6 of the former Canons of Professional Ethics. 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 Treat this page as historical context, not current guidance.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 requirement mentioned here.

Common questions

Q: Can a municipal attorney also serve as attorney for the planning board or zoning board in the same town?

A: Not where a conflict of interest is present or possible. The Committee held that a municipal attorney cannot serve as 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: Did the Committee say holding both positions is always prohibited?

A: No. It expressly declined to decide whether the two representations are incompatible in every case, resting its conclusion on the presence or possibility of conflict in a particular situation.

Q: Why are conflicts likely between these municipal bodies?

A: The Committee observed that the governing body, planning board, and board of health frequently take conflicting positions, and that bodies like a board of education are autonomous, so the municipal attorney could be required to contend for one client against another.

Background and rules framework

The opinion applied Canon 6 of the former Canons of Professional Ethics, which prohibited representing conflicting interests. In current New Jersey terms, the analysis falls under RPC 1.7. The Committee relied on New Jersey case law about municipal bodies (Dolan v. DeCapua, Wilson v. Long Branch, Botkin v. Westwood) and on the incompatible-offices discussion in its own Opinion 4.

Citations and references

Rules of Professional Conduct (as in effect at the time):

• Canon of Professional Ethics 6 (representing conflicting interests)

Cases (as cited by the opinion):

• Dolan v. DeCapua, 16 N.J. 599, 614, cited on a municipal attorney representing the zoning board of adjustment
• Wilson v. Long Branch, 27 N.J. 360, 396 (1958), cert. denied, 358 U.S. 873 (1958)
• Botkin v. Westwood, 52 N.J. Super. 416 (App. Div. 1958), board of education as an autonomous body
• State ex rel. Clawson v. Thompson, 20 N.J.L. 689 (Sup. Ct. 1846), incompatible-offices test

Other opinions cited:

• N.J. ACPE Opinion 4 (incompatible-offices rule)

See also

• NJ ACPE Op. 69: Municipal Attorney Doing a Developer's Legal Work for an Indirect Fee
• NJ ACPE Op. 117: Municipal Attorney as Adviser to the Planning Board
• NJ ACPE Op. 127: Representing Both the Zoning and Planning Boards
• NJ ACPE Op. 164: Representing Both the Zoning and Planning Boards

Source

• Landing page: https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp67-1.html

Original opinion text

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

88 N.J.L.J. 81
February 11, 1965

OPINION 67
Municipal Attorney
Attorney for Other Municipal Agencies

The following inquiry is presented:

May a municipal attorney also be the attorney for the planning board, zoning board of adjustment, or health and education boards in the same municipality?

Canons of Professional Ethics, Canon 6 precludes an attorney from representing conflicting interests. The canon provides:

...Within the meaning of this canon, a lawyer represents conflicting interests when, in behalf of one client, it is his duty to contend for that which duty to another client requires him to oppose. ... .

The position of the municipal attorney in representing the zoning board of adjustment was criticized in Dolan v. DeCapua, 16 N.J. 599, 614 (1964), and Wilson v. Long Branch, 27 N.J. 360, 396 (1958), certiorari denied 358 U.S. 873, 3 L.Ed. 2d. 104 (1958).

Our law reports are replete with cases in which the municipal governing body, the planning board and the board of health have entertained conflicting points of view. Botkin v. Westwood, 52 N.J. Super. 416 (App. Div. 1958), held that the board of education was an autonomous body, and that insofar as the municipality was concerned, neither had any right to interfere with the other.

In N.J. Advisory Committee on Professional Ethics, Opinion 4, (Hall, J.):

The test of the common law rule that one may not hold incompatible offices is, as the rule itself, an ancient one. The classic statement in this state is found in State ex rel. Clawson v. Thompson, 20 N.J.L. 689 (Sup. Ct. 1846):

...Where there is no express (constitutional or statutory) provision, the true test is, whether the two offices are incompatible in their natures, in the rights, duties or obligations connected with or flowing out of them. Offices, says Bacon, are incompatible or inconsistent, when they cannot be executed by the same person; or when they cannot be executed with care, and ability; or where one is subordinate to, or interferes with another. Bac. Abr. Tit. "Office" K. (at page 422)

In our opinion, a municipal attorney cannot serve as attorney for any board or agency of the same municipality if there is or may be a conflict of interest in a particular situation. We occupiers no opinion as to whether the representations are incompatible.