Rutgers School of Law, OAL case ACPE130

91 N.J.L.J. 369
June 6, 1968

ADVISORY COMMITTEE ON PROFESSIONAL ETHICS

Appointed by the New Jersey Supreme Court

OPINION 130

Conflict of Interest
Attorney for Zoning Board of Adjustment

    The following question has been submitted to this Committee: May an attorney be designated to act in a single case for a zoning board of adjustment in its hearing of a variance application of some importance as a substitute for the board's duly appointed attorney due to illness of the latter, and by so doing not create a conflict of interest when appearing before the same board in the future on behalf of private clients?
    The inquirer has served as the only attorney member on a zoning board of adjustment for seven years, and toward the end of that period voted in favor of appointing the present attorney for the board. Shortly thereafter, he resigned as a member of the board in order to avoid a conflict of interest, in keeping with the ruling in our Opinion 37, 87 N.J.L.J. 190 (1964). Since then he has represented clients before the municipal court judge and zoning and planning boards. The zoning board's attorney is now recuperating from an operation, and has requested the inquirer to serve as the board's attorney in its hearing of a variance application which may well take more than three or four nights of hearings.
    In passing on the propriety of an attorney representing the zoning board of adjustment in a special case, because of the illness of the regular attorney, it is necessary to consider the particular facts of the case. Here, the attorney was a former member of the board, had a hand in appointing the regular attorney for the board before resigning, and practices regularly before the local municipal court and municipal boards.
    We assume that the inquirer has no case pending before the zoning board of adjustment, because if he did, he should, under no circumstances, act as attorney for the board. In such a case, one who practices law is in a position of great delicacy and must be scrupulously careful to avoid conduct in his practice whereby he utilizes or seems to utilize his official position to further his professional success. We do not suggest that an attorney who has been a member of or attorney for a public body cannot ever thereafter appear before such public body; however, he must take extreme care to make certain that the new matter is one that will not be affected in any way by confidential information he may have obtained in his former retainer. While a former client may consent to his appearance in a later case, even though a conflict of interests may be involved, such consent cannot be obtained where the client is a public agency. Obviously, the dangers of such conflict of interests are much greater where the cessation of the attorney-client relationship as to the first client is relatively recent. It is frequently difficult to determine what information or
knowledge of a confidential nature has come to an attorney by reason of the attorney-client relationship, and certainly in considering a second retainer an attorney should resolve any doubts

in favor of his client. This is particularly so since the spirit of the Canons not only requires the avoidance of an actual conflict of interests but anything that might give rise to a belief in the minds of the public or others that a conflict in fact exists which may be used unfairly to the disadvantage of the first client. N.J. Advisory Committee on Professional Ethics, Opinion 42, 87 N.J.L.J. 285 (1964).
    There is another reason why this attorney should not represent "specially for one case" the board of adjustment. The principle was set forth in our Opinion 64, 87 N.J.L.J. 801 (1964) and 79, 88 N.J.L.J. 460 (1965), wherein we stated:
            Just as in the case of a municipal attorney representing a private client before a municipal agency, the losing litigant or the public in general will be troubled by the suspicion that his adversary's success in the matter was attributable to his position or in- fluence as a municipal official. See N.J. Advisory Committee on professional Ethics, Opinion 4, 86 N.J.L.J. 357 (1963); Opinion 37, 87 N.J.L.J. 190 (1964); Opinion 52, 87 N.J.L.J. 610 (1964); and the other opinions cited therein.

    It is our opinion, therefore, that under the facts of this case the attorney should not act as attorney for the board of adjustment in this one case.

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