May a municipal attorney continue to represent a developer or builder operating in a neighboring municipality when that client is also building in the town the attorney serves?

Plain-English summary

The inquiring attorney served as counsel to municipality A, responsible for its legal affairs except the board of education and the housing authority, which were independently represented. He had been representing a property owner in neighboring municipality B, objecting to a variance granted there. That owner sold the land to a limited partnership and the attorney was asked to continue representing the new owner. The principal of the partnership was then constructing an office building in municipality A, a substantial project likely to involve transactions with municipality A, though the attorney said he had no connection with that enterprise. He asked whether his continued representation of the client in municipality B was proper.

The Committee concluded the continued representation would be improper under Canon 6. It quoted In re A.& B., 44 N.J. 331, 334 (1965), which said the bar need not receive prospective clients with unbecoming suspicion, and that a municipal attorney is not barred from representing individuals or interests in the municipality merely because the client may someday have a transaction with it, but that land development is an area where the likelihood of municipal transactions and the room for public misunderstanding are so great that a lawyer should not represent a developer operating in a municipality where the lawyer is the municipal attorney or holds another municipal office of apparent influence. The Committee cited its Opinions 85 and 69 as well.

The attorney also asked about a second matter: he had represented a corporate developer and builder in municipality C, and one of that corporation's principals was now involved in land developments in municipality A through other corporations and participants, again apparently as a principal. The Committee said that in questions of professional ethics the lawyer's responsibility is governed by substance and not mere form, and concluded that the continued representation in such circumstances would also be improper.

Currency note

This opinion was issued in April 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 Canon 6 of the Canons of Professional Ethics on conflicting interests, as construed in In re A.& B., 44 N.J. 331 (1965). 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: Could a municipal attorney keep representing a developer building in the town he served?

A: No. The Committee held the continued representation improper under Canon 6, because In re A.& B. treats land development as an area where the likelihood of municipal dealings and public misunderstanding is too great.

Q: Did it matter that the attorney claimed no involvement in the client's dealings with the municipality?

A: The Committee said the responsibility and duty of the attorney are governed by substance and not mere form, and it reached the same improper conclusion even where the principal acted through other corporations and participants.

Q: Is a municipal attorney always barred from representing local clients?

A: No. The Committee, quoting In re A.& B., said a municipal attorney is not barred from representing individuals or interests in the municipality merely because the client may eventually have some transaction with it; the bar applies to representing a developer operating in the municipality the lawyer serves.

Background and rules framework

The opinion applied Canon 6 of the Canons of Professional Ethics, the conflicting-interests provision, as construed by the New Jersey Supreme Court in In re A.& B., 44 N.J. 331 (1965), which singled out land development as a field carrying a high likelihood of municipal transactions and public misunderstanding. In current New Jersey terms, the conflict analysis maps to RPC 1.7.

Citations and references

Cases:

• In re A.& B., 44 N.J. 331, 334 (N.J. 1965), municipal attorney should not represent a developer operating in his own municipality

Other authorities:

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

Other opinions cited:

• NJ ACPE Opinion 85, 88 N.J.L.J. 631 (1965): a municipal magistrate may not represent a developer in his municipality
• NJ ACPE Opinion 69, 88 N.J.L.J. 97 (1965)

See also

• NJ ACPE Op. 85: A Municipal Magistrate Representing a Developer
• NJ ACPE Op. 157: An Assistant Municipal Attorney Representing a Builder
• NJ ACPE Op. 161: An Associate of the Municipal Attorney Representing a Developer
• NJ ACPE Op. 167: A Municipal Judge Representing Developers

Source

• Landing page: https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp90-1.html

Original opinion text

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

89 N.J.L.J. 241
April 21, 1966

OPINION 90

Municipal Attorney Representing Builder

An attorney serving as counsel to municipality A advises that his department is responsible for the legal affairs of the city with the exception of the board of education and the housing authority, which he states are independently represented. He further states that he has been representing a property owner in a neighboring municipality B and was objecting in his behalf to a variance granted there. The property owner sold his lands to a limited partnership and the attorney was asked to represent the new owner and continue in the proceeding. The principal of the partnership is now constructing an office building in municipality A. We assume that this is a substantial project with the likelihood of transactions with municipality A. The attorney states that he does not have any connection or association with that enterprise or any other matter in connection with that client. The attorney asks whether his continued representation of this client in municipality B is proper.

It is our opinion that the continued representation would be improper under Canons of Professional Ethics, Canon 6. The Supreme Court held in In re A.& B., 44 N.J. 331, 334 (1965):

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.

See also N.J. Advisory Committee on Professional Ethics, Opinion 85, 88 N.J.L.J. 631 (1965), and Opinion 69, 88 N.J.L.J. 97 (1965).

The attorney further presents inquiries as to another matter where he has been representing a corporate developer and builder in a matter in municipality C and where one of the principals of that corporation is now involved in land developments in municipality A through other corporations and with other participants, but again apparently as one of the principals.

In questions involving the ethics of the profession, the responsibility and duty of the attorney are governed by the substance and not mere form. It is accordingly the opinion of the Committee that the continued representation by the attorney in such circumstances would be improper.