Rutgers School of Law, OAL case ACPE168

93 N.J.L.J. 7
January 1, 1970

ADVISORY COMMITTEE ON PROFESSIONAL ETHICS

Appointed by the New Jersey Supreme Court

OPINION 168

Conflict of Interest
Planning Board Attorney
Representing Criminal Accused

Our opinion is sought on the following inquiry:

May all attorney for a county planning board ... represent persons accused of crime within the county?

R.S. 40:27-1 permits the creation by the board of chosen freeholders of a county planning board consisting of not less than five nor more than nine members. The members shall be the director of the board of chosen freeholders, one member of the board of chosen freeholders to be appointed by the director, the county engineer, if the planning board exceeds six, and other citizens appointed by the director of the board of chosen freeholders with the approval of that body. The planning board is directed "to make and adopt a master plan for the physical development of the county," R.S. 40:27-2. And under L. 1968 c. 285 (N.J.S.A. 40:27-4 et seq.) it has broad powers to review and approve subdivisions of land affecting county roads, drainage facilities, traffic safety, etc. Thus, the county planning board and its attorneys are representing all the people of the county in matters pertaining to the board's special field.

    In N.J. Advisory Committee on Professional Ethics, Opinion 106, 90 N.J.L.J. 97 (1967), which concerned, among other things, the propriety of a county attorney representing private clients accused of crime in his county, we pointed out that the attorney's "conduct must be such as to prevent any inference arising that he is using his public office for private gain" and concluded it would be improper for him to represent such clients. In many opinions we
have considered the area of conflict that arises when an attorney for a public body, board or agency, or an attorney member thereof,
represents a private client under circumstances creating a suspicion that the attorney is using the influence of his public office in behalf of his client. We have consistently held that such representation was improper. In our Opinion 88, 89 N.J.L.J. 49 (1966), we said:
            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 of agency. In this respect the language of the A.B.A. 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.

    Applying the foregoing firmly established ethical principles to the present inquiry, it seems dear that if a planning board attorney appeared as the attorney for a criminal accused within the
same county the public would suspect he would receive preferential treatment for his client and was using the influence of his public office for private gain. It is our opinion that such conduct would be improper.

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