May a part-time municipal magistrate who still practices law represent a builder or developer buying land in his municipality when the land will need variances or subdivision approvals?

Plain-English summary

A part-time municipal magistrate permitted to practice law had been advised by the Supreme Court that the limitations on representing clients set out in In re A. and B., 44 N.J. 331 (1965), apply to municipal magistrates as well as to municipal attorneys. He asked whether he could represent a builder buying land in his municipality where the land would later be subdivided and sold as homesites, or retained for an apartment house or commercial building, and whether he could represent an individual buying property and arranging mortgage financing where the intended use would require a variance or subdivision handled before the local boards by other counsel.

The Committee quoted In re A. and B., which held that although there may be no literal violation of Canon 6 where the lawyer does not represent the developer in dealings with the municipality, the canon does not exhaust the bar's ethical responsibility: no attorney holding public office should let anyone gain an advantage by virtue of his official status, and land development is an area where the likelihood of municipal transactions and public misunderstanding is so great that a public-office lawyer should not represent a developer operating in his municipality. The Committee reasoned that the purchases described definitely contemplated later proceedings before other municipal bodies, so they did not fall within the court's narrow allowance for a client who "merely" might someday have some transaction with the municipality. It quoted Justice Schettino's concurrence on the practical entanglements that arise when a municipal official-lawyer represents a developer even in a land purchase, and cited the Committee's Opinion 8. It concluded that the magistrate-attorney's representation as described would for all practical purposes violate Canon 6.

Currency note

This opinion was issued in September 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 Canons of Professional Ethics, as construed in In re A. and B., 44 N.J. 331 (1965). That subject is now treated under RPC 1.7, and the conduct of part-time judges is also governed by the Code of Judicial Conduct. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific requirement mentioned here.

Common questions

Q: Could a part-time municipal magistrate represent a developer buying land in his town?

A: No. The Committee held the representation would for all practical purposes violate Canon 6, because the purchases described plainly contemplated later applications to municipal agencies.

Q: Why didn't the In re A. and B. exception for incidental municipal contact apply?

A: The Committee said the inquiry showed the purchases definitely contemplated proceedings before other municipal bodies, so they went beyond a case where the client only "merely" might come to have some transaction with the municipality.

Q: Did it matter that other counsel would handle the variance or subdivision applications?

A: The Committee still found the representation improper, reasoning from In re A. and B. and Justice Schettino's concurrence that a municipal official-lawyer's involvement in a developer's land purchase creates entanglements even where the municipal proceedings are handled by others.

Background and rules framework

The opinion applied Canon 6 of the Canons of Professional Ethics, as construed by the New Jersey Supreme Court in In re A. and B., 44 N.J. 331 (1965), which extended its limits to municipal magistrates and treated land development as a field carrying a high likelihood of municipal dealings and public misunderstanding. In current New Jersey terms, the conflict analysis maps to RPC 1.7.

Citations and references

Cases:

• In re A. and B., 44 N.J. 331 (N.J. 1965), including Justice Schettino's concurring opinion, on a public-office lawyer representing a developer in his municipality

Other authorities:

• Canons of Professional Ethics, Canon 6 (conflicting interests)

Other opinions cited:

• NJ ACPE Opinion 8, 86 N.J.L.J. 718 (1963)

See also

• NJ ACPE Op. 90: A Municipal Attorney Representing a Builder
• NJ ACPE Op. 167: A Municipal Judge Representing Developers
• NJ ACPE Op. 84: A Municipal Attorney Defending Offenders in His Own Town

Source

• Landing page: https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp85-1.html

Original opinion text

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

88 N.J.L.J. 631
September 30, 1965

OPINION 85

Magistrate's Representing Developer

A part-time municipal magistrate who is permitted to practice law having been advised by the Supreme Court that the limitations on the representation of clients set forth in In Re A. and B., 44 N.J. 331 (1965), apply to municipal magistrates as well as to municipal attorneys presents the following inquiries:

1. May the Municipal Magistrate represent a builder in the municipality in the latter's purchase of land when

a. The land is subsequently to be subdivided and sold as individual homesites?

b. The land is to be retained by the builder and an apartment house or commercial buildings built thereon?

2. May a Magistrate represent an individual client with regard to the purchase of a piece of property and the mortgage financing thereon when the use to which the property will be put requires a variance or a subdivision, which latter two actions will be handled before the local planning board or board of adjustment by other counsel?

Our Supreme Court stated in In re A and B., supra:

Here, as we have said, we do not find the respondents represented the developers in the developers' dealings with the municipality. Although for this reason there is no literal violation of Canon 6, nonetheless that canon does not exhaust the ethical responsibility of the bar in this area. It is fundamental that no attorney who holds a public office should suffer anyone to attempt to gain an advantage by virtue of his official status, and hence it would be improper for an attorney so situated to accept a retainer if he is aware that the prospective client has that objective in mind.

We do not suggest that the members of the bar must receive a prospective client with unbecoming suspicion, nor of course do we suggest that an attorney for a municipality may not represent individuals or interests located therein merely because it may come to pass that the private client will have some transaction with the municipality.

Nonetheless the subject of land development is one in which the likelihood of transactions with a municipality and the room for public misunderstanding are so great that a member of the bar should not represent a developer operating in a municipality in which the member of the bar is the municipal attorney or the holder of any other municipal office of apparent influence. We all know from practical experience that the very nature of the work of the developer involves a probability of some municipal action, such as zoning applications, land subdivisions, building permits, compliance with the building code, etc.

It is clear from the inquiries and further information supplied by the magistrate that the land purchase for which his service as a lawyer is sought definitely contemplates proceedings before other municipal bodies and therefore does not come within the permitted representation suggested by the court's language that "merely because it may come to pass that the private client will have some transaction with the municipality" such client's representation by an attorney-municipal official should not be barred. In the foregoing questions, it is certain that after the purchase of the land there will be applications to municipal agencies for favorable consideration of one sort or another.

Justice Schettino's concurring opinion in In Re A. and B., supra, makes quite clear the realistic difficulties present when a municipal official-lawyer represents a developer in a matter not directly affecting the municipality such as in the mere purchase of the land where municipal action concerning the land's use is obviously indicated. In the learned Justice's words:

A land and building development has widespread ramifications in a municipality, not the least of which are the required dealings with the various municipal agencies and departments. Even though the municipal attorney may not actively represent the developer in matters affecting the municipality (as respondents here claim), other municipal officials and employees will of necessity know of the representation. Such a situation probably results in a Pandora's box of psychological and legal entanglements involving other public officials as well as the municipal attorney.

See also this Committee's Opinion 8, 86 N.J.L.J. 718 (1963).

It is the opinion of this Committee that the representation by the magistrate-attorney as set forth in the foregoing inquiries would for all practical purposes violate the Canons of Professional Ethics, Canon 6.