93 N.J.L.J. 1
January 1, 1970
Conflict of Interest
Municipal Judge Representing Developers
May a municipal judge act as attorney for a developer of land
located in the municipality which he serves, when one of the major
concerns is the action of the municipal planning and zoning boards?
Our comments respecting an assistant municipal attorney representing a builder, in our Opinion 157, 92 N.J.L.J. 593 (1969), and the opinions and cases cited therein, apply with equal force and logic to a municipal judge representing a developer. Such representation is clearly a violation of the letter and spirit of
Canons of Professional Ethics, Canon 6.
See also, R. 1:15-1 Limitation on Practice of Attorneys Serving as Judges and Surrogates,... (c) Judges of Municipal Courts:
Nor shall he act as attorney for the municipality or any of the municipalities wherein he is serving or as attorney for any agency or officer thereof; nor practice before the governing body or any agency or officer thereof ... .
Any development requires applications to some or all of the following boards or persons: planning board, board of adjustment, building inspector, and the municipal engineer.
A municipal judge in making any such application violates Canon 6 which deals with conflicting interests and provides in part as follows:
It is unprofessional to represent conflicting interests, except by express consent of all concerned given after a full disclosure of the facts. Within the meaning of this canon, a lawyer represents conflicting interests when, in behalf of one client, it is his duty to contend for that which duty to another client requires him to oppose ... .
In a broad sense, a municipal judge has as his client the entire municipality, and he should avoid any retainers from others which may place him in a position where he appears to be either seeking relief or favor from the municipality or any of its agencies for a private client or opposing actions by the municipality or its agencies on behalf of a private client. If he did so, it would be inevitable that, if he were successful, the losing litigant, or the public in general, would be troubled by suspicion that his success in the matter was attributable to improprieties and that his position or influence as municipal judge
might have furthered the cause of the private client.
While an attorney representing two private clients may properly act in exceptional cases with the consent of both, even though a possibility of conflicting interests exists, consent is generally unavailable where the public interest is involved. See Drinker, Legal Ethics 120 (1953).