93 N.J.L.J. 17
January 8, 1970
Conflict of Interest
Planning Board Attorney
Partner of Mayor's Father
Inquiry has been made as to whether it is proper for an
attorney to represent the planning board of a municipality when his
law partner is the father of the mayor of the municipality.
It has been settled by our opinions that, because of the particular duties assigned to zoning and planning boards under New Jersey statutes, it is improper for the same attorney to represent both the municipality and either of these boards. Opinions 127, 91 N.J.L.J. 262 (1968); 117, 90 N.J.L.J. 745 (1967); 67, 88 N.J.L.J. 81 (1965). Moreover, it has been recognized that, because of the latent conflicts presented by such a dual representation, it is improper for one attorney to represent one of the boards and for another attorney from the same office to represent the municipality. Opinion 149, 92 N.J.L.J. 185 (1969).
All these opinions, although very helpful on the question of the relation and potential conflicts between the planning board and the municipality, are not dispositive of the present inquiry where there is no potential conflict of interests stemming from dual representation. The only element of the present inquiry which might prevent the attorney from performing an unhampered and unbiased service to his client is the possibility that he might be influenced by the mayor's view on a given application. It would appear, however, that this is a threat which is inherent in every relation that an attorney has with family or friends, and that it does not necessarily become more potent because that relation is with a mayor.
If the situation arises where the mayor, as a representative of the governing body, is called upon to review an action of the planning board (e.g., to review the disapproval of a subdivision),
then by analogy to cases involving the propriety of a judge sitting in a proceeding in which he has an interest, the responsibility is with the one making the decision to disqualify himself. See Opinion 136, 91 N.J.L.J. 749 (1968), which concluded that it was proper for an attorney to represent a planning board of which his uncle was a member and chairman, as he was seeking no discretionary favor on behalf of a private client.
This allocation of responsibility, however, does not meet the problem posed by the commonly invoked rule that it is an attorney's responsibility to avoid all situations in which there may be even the slightest appearance, to the public or to an opposing party, that a purportedly objective decision may have been the result of bias or influence, or that an attorney might use his position or influence with a public authority to effect a result favorable to a client. See, in connection with distinguishable fact situations, Opinion 88, 89 N.J.L.J. 49 (1966), and opinions cited therein; Opinions 32, 87 N.J.L.J. 185 (1964); 22, 87 N.J.L.J. 13 (1964); 20, 86 N.J.L.J. 734 (1963); and 4, 86 N.J.L.J. 357 (1963).
The present inquiry is distinguishable from that involving the attorney with an uncle on the planning board, Opinion 136 supra because in the present case there is the possibility that the attorney will to try use influence on behalf of his client (the planning board) when planning board decisions or recommendations are appealed to the municipal governing body.
This inquiry is thus reduced to the question of what relationships are to be proscribed in connection with this appearance of bias and influence, and specifically whether this relationship, involving the son of a law partner, is within this proscribed area. We conclude that any relationship other than that of actual kinship is so difficult to ascertain and evaluate that it should not be included within the area of proscribed activity. The fact that the mayor is related to someone else in the same office is not determinative in this inquiry because the question is not one of potentially conflicting duties to clients.