If a lawyer becomes a member of a municipal zoning board of adjustment, may he represent private clients before the town's other boards, the governing body, and the municipal court?

Plain-English summary

The inquiry came from attorney X, a resident of municipality B who had been asked to serve as a member of its zoning board of adjustment. X asked whether, if he accepted, he could represent clients before the zoning board (while disqualifying himself from the board's deliberations), the planning board, the governing body, the municipal court, and other municipal agencies such as the board of education, board of health, industrial commission, and sewer authority.

X conceded that the first three uses had previously been answered in the negative, but argued that earlier opinions like Opinion 15 rested on the role of an attorney representing a municipal body rather than an attorney who was a member of such a body, and contended that conduct improper for the representing attorney was not improper for a mere member. The Committee disagreed. It said the prevailing theme running through its opinions in this area is that, where the public interest is involved, every situation affording a chance for impropriety, however slight, should be avoided to eliminate public suspicion that an attorney in public office will use his position or influence for a client, and that this applies whether the lawyer is attorney for or a member of the public body. It quoted ABA Opinion 49 (1931) that the profession must avoid not only evil but the appearance of evil.

The Committee then collected its prior holdings barring attorney-members of various boards (Opinions 37, 64, 70, and 77) from representing clients before other agencies of the same municipality. It concluded it would be improper for attorney X to represent clients before the zoning board, the planning board, the municipal governing body, the municipal court, or any other municipal board or agency, with the sole exception of the board of education if that board is elected under Chapter 7, Title 18 of the Revised Statutes, citing Opinion 41 and Botkin v. Westwood, 52 N.J. Super. 416 (App. Div. 1958).

Currency note

This opinion was issued in January 1966, 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 Canon 6 conflict-of-interest principles the Committee developed for attorneys holding municipal office. That subject is now treated under RPC 1.7. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific requirement mentioned here.

Common questions

Q: May a lawyer on the zoning board represent clients before the town's other agencies?

A: No. The Committee held it improper for the attorney-member to represent clients before the zoning board, planning board, governing body, municipal court, or any other agency of the municipality, except an elected board of education.

Q: Did being a board member rather than the board's attorney change the result?

A: No. The Committee rejected that distinction, holding the bar applies whether the lawyer is the attorney for or a member of the public body, because the public-interest concern is the same.

Q: What was the board-of-education exception?

A: The Committee said the sole exception was the board of education if it is elected under Chapter 7, Title 18 of the Revised Statutes, citing its Opinion 41 and Botkin v. Westwood.

Background and rules framework

The opinion applied the Canon 6 conflict principles the Committee had developed for lawyers holding municipal office, treating the appearance of impropriety as decisive where the public interest is involved. It synthesized a line of prior opinions (37, 64, 70, 77) and recognized a single exception for an elected board of education. In current New Jersey terms, the conflict analysis maps to RPC 1.7.

Citations and references

Cases:

• Botkin v. Westwood, 52 N.J. Super. 416 (App. Div. 1958), cited as to the board-of-education exception

Other authorities:

• Canons of Professional Ethics, Canon 6 (conflicting interests)
• ABA Committee on Professional Ethics and Grievances, Opinion 49 (1931): the profession must avoid even the appearance of evil

Other opinions cited:

• NJ ACPE Opinions 15, 19, 22, 24, 33, 37, 41, 64, 70, and 77: attorney-members of municipal bodies may not represent clients before other agencies of the same municipality

See also

• NJ ACPE Op. 91: A Zoning Board Attorney Appearing for the Municipality
• NJ ACPE Op. 84: A Municipal Attorney Defending Offenders in His Own Town
• NJ ACPE Op. 117: A Municipal Attorney as Adviser to the Planning Board
• NJ ACPE Op. 149: An Associate of the Municipal Attorney and the Planning Board

Source

• Landing page: https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp88-1.html

Original opinion text

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

89 N.J.L.J. 49
January 27, 1966

OPINION 88

The following inquiry has been submitted:

Attorney X is a resident of municipality B. A member of the governing body of municipality B has contacted X and asked him if he would be willing to serve as a member of the zoning board of adjustment in municipality B. If attorney X accepts the appointment and becomes a member of the zoning board of adjustment of municipality B, may he:

1) Represent clients before the zoning board of adjustment in municipality B, of course, disqualifying himself from participation in the board's deliberations?

2) Represent a client before the planning board of municipality B?

3) Represent a client before the governing body of municipality B?

4) Represent a client before the municipal court in municipality B?

5) Represent a client before other administrative agencies of municipality B, such as, but not limited to, the board of education, the board of health, industrial commission, sewer authority, etc.?

The foregoing questions have all been previously answered in the negative, with one exception pertaining to a board of education, hereinafter referred to. This, the inquirer concedes, as to the first three questions but argues that N.J. Advisory Committee on Professional Ethics, Opinion 15, 86 N.J.L.J. 734 (1963), based its answers to said three questions upon prior opinions dealing with the functions of an attorney representing a municipal body, board or agency, rather than with an attorney-member of such municipal body, board, or agency. He contends, in substance and effect, that what we have said is improper conduct for an attorney representing a municipal body, board or agency, is not improper if the attorney is only a member of such municipal body, board or agency. We disagree.

Running through all our opinions, in this area of conflict, is the prevailing theme that, where the public interest is involved, every situation which affords a chance for impropriety, however slight, should, if possible, be avoided in order to eliminate public suspicion that an attorney in public office will use his position or influence in behalf of a client. And this is so whether he is the attorney for or a member of a public body, board or agency. In this respect the language of the ABA Comm. on Professional Ethics and Grievances, Opinion 49 (1931), is particularly appropriate. The committee said:

If the profession is to occupy that position in public esteem which will enable it to be of the greatest usefulness, it must avoid not only all evil, but must likewise avoid the appearance of evil.

In N.J. Advisory Committee on Professional Ethics, Opinion 37, 87 N.J.L.J. 190 (1964), we said that it was improper for an attorney-member of a board of health to represent private clients before other municipal agencies in the same municipality, such as the zoning board of adjustment, the municipal court, the municipal governing body, the alcoholic beverage control board, and the planning board. In Opinion 64, 87 N.J.L.J. 801 (1964), we held that it was improper for an attorney-member of a municipal parking authority to represent clients in the municipal court or before any other agency of the same municipality. In Opinion 70, 88 N.J.L.J. 161 (1965), we advised that it was improper for a law firm of an attorney-member of a governing body to represent clients before a board of adjustment, planning board, or governing body in that municipality. In Opinion 77, 88 N.J.L.J. 453 (1965), we said "it would be improper for an attorney, who is an appointed member of a board of education functioning under Title 18, Chapter 6, to represent individual clients before the municipal court or the various boards of the municipality." See also N.J. Advisory Committee on Professional Ethics Opinion 24, 87 N.J.L.J. 19 (1964); 22, 87 N.J.L.J. 13 (1964); 19, 86 N.J.L.J. 734 (1963); and 33, 87 N.J.L.J. 249 (1964).

It is our opinion, therefore, that it would be improper for attorney X to represent clients before the zoning board, the planning board, the municipal governing body, the municipal court, or any other boards or agencies of municipality B, with the sole exception of the board of education, if said board is elected under Chapter 7, Title 18 of the Revised Statutes. See N.J. Advisory Committee on Professional Ethics Opinion 41, 87 N.J.L.J. 285 (1964), and Botkin v. Westwood, 52 N.J. Super. 416 (App. Div. 1958).