May the attorney for a zoning board of adjustment also represent the municipal governing body in court appeals, including cases where the governing body reversed the zoning board?

Plain-English summary

The inquiry described X, the attorney for a zoning board of adjustment, and Y, counsel for the municipality. Under local ordinances, the governing body's approval was required in some cases where a variance had been granted, and in some instances the governing body could reverse the zoning board. X had been asked to handle all zoning appeals, including those where the governing body had to act, and asked whether he could represent the governing body when it had affirmed the zoning board and when it had reversed the zoning board.

On the reversal question, the Committee asked how the zoning board attorney could appear in the courts and challenge the conclusion of his original client, the board, and what position he would take if a reviewing court remanded the matter to the board. He would be sitting on different sides of the fence at different stages, and it would be difficult for the public to understand how a zoning board attorney could shift his status. Citing its Opinion 53 and the authorities there, the Committee said the attorney could not change sides; doing so would violate Canon 6. It therefore concluded the zoning board attorney could not appear for the municipal body where the governing body reversed the board.

On the affirmance question, the Committee noted a recent statute (P.L. 1965, c. 215, N.J.S.A. 40:55-36.1) permitting a board of adjustment to appoint its own attorney separate from the municipal attorney. It framed the underlying issue as whether the two offices were legally incompatible, and said that determination could be made only by the courts and not by the Committee, so it expressed no opinion on that subject.

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 developed in the Committee's Opinion 53. 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 Treat this page as historical context, not current guidance.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 zoning board attorney appear for the municipality when it reversed the board?

A: No. The Committee held he could not, because appearing for the governing body against the board he served would require him to change sides and challenge his original client, in violation of Canon 6.

Q: Did the Committee decide whether holding both roles was legally incompatible?

A: No. The Committee said whether there is incompatibility between the two offices as a matter of law could be determined only by the courts, not by the Committee, so it expressed no opinion on that question.

Q: What did the opinion note about a board of adjustment hiring its own attorney?

A: The Committee noted a recent statute, P.L. 1965, c. 215 (N.J.S.A. 40:55-36.1), that permitted a board of adjustment to appoint its own attorney separate from the municipal attorney.

Background and rules framework

The opinion applied Canon 6 of the Canons of Professional Ethics, the conflicting-interests provision, as developed in the Committee's Opinion 53. The core holding was that a lawyer could not change sides to appear against a former client, here the zoning board, when the governing body reversed it. In current New Jersey terms, the concurrent-conflict analysis maps to RPC 1.7.

Citations and references

Statutes:

• P.L. 1965, c. 215, N.J.S.A. 40:55-36.1 (board of adjustment may appoint its own attorney)

Other authorities:

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

Other opinions cited:

• NJ ACPE Opinion 53, 87 N.J.L.J. 610 (1964): an attorney may not change sides against a client

See also

• NJ ACPE Op. 127: Representing Both the Zoning and Planning Boards
• NJ ACPE Op. 117: A Municipal Attorney as Adviser to the Planning Board
• 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/acp91-1.html

Original opinion text

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

89 N.J.L.J. 248
April 21, 1966

OPINION 91

Zoning Board Attorney Representing Municipality

The following inquiry has been submitted:

X is attorney for a zoning board of adjustment. Y is counsel for the municipality. Under local zoning ordinances in certain circumstances, approval of the governing body is required where a variance has been granted. X has been requested to handle all appeals in zoning matters including those where the governing body is required to act. In some instances the governing body may reverse the action of the zoning board. X desires to know the propriety of representing the governing body (a) when it has affirmed the zoning board and (b) when it has reversed the zoning board.

Where the governing body reverses the determination of the zoning board, can the attorney for the zoning board appear in the courts and challenge the conclusion of his original client? What position should the attorney adopt if the reviewing court remands the litigation to the zoning board? He would be sitting on different sides of the fence at different stages of the proceedings and it would be difficult for the public to understand how a zoning board attorney can shift his status from time to time.

This subject is more fully discussed in our Opinion 53, 87 N.J.L.J. 610 (1964) and the citations therein, where we stated that the attorney could not change sides. Canons of Professional Ethics, Canon 6 would be violated and hence we feel that the zoning board attorney could not appear for the municipal body where there is a reversal by the governing body.

Where the zoning board and the governing body have arrived at the same conclusion, can the zoning board attorney appear on behalf of the municipality in subsequent court proceedings?

A recent statute permits the board of adjustment of a municipality to appoint his own attorney other than the attorney for the municipality. P.L. 1965, c. 215 N.J.S.A. 40:55-36.1.

The problem posed raises the question whether there is incompatibility between the two offices as a matter of law. Such determination can only be made by our courts and not by this Committee and hence we express no opinion on this subject.