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                                            93 N.J.L.J. 469
                                            June 25, 1970

ADVISORY COMMITTEE ON PROFESSIONAL ETHICS

Appointed by the New Jersey Supreme Court

OPINION 179

Conflict of Interest
Zoning Board Attorney
Partner Representing Appealing Applicant

    An attorney for a municipal zoning board of adjustment inquires whether he may continue to represent the zoning board in an appeal from the denial of the grant of a variance where the appellant is a principal of a business entity which is represented by an office partner of the attorney. The attorney states that an application was made to the board of adjustment by a business entity known as "T & R Development Company." The board of adjustment which he represents denied the variance request and the
applicant appealed that decision to the Law Division.
    Some six months prior to the denial, the applicant retained one of the inquirer's partners to represent him in connection with a subdivision application and property transfer in a neighboring county, said transaction being totally unrelated to the variance application. The attorney states that subsequent to the denial of
the variance application he learned that his partner's client was one of the principals involved in the variance application. He is now representing the board of adjustment in defense of the denial and requests our opinion as to whether such representation would constitute a violation of the Canons of Professional Ethics, Canon 6.

    In our opinion, such continued representation would be improper. The dual representation, obvious in the above statement of facts, presents a conflict of interest proscribed by Canon 6 which states "[it is unprofessional to represent conflicting interests... ." The general problem presented has been reviewed several times by this Committee. It was analyzed at length in our Opinion 4, 86 N.J.L.J. 357 (1963), at page 361:
            In a broad sense an attorney representing a municipality or any of its agencies 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 to oppose action 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 a municipal attorney might have furthered the cause of the private client. See also Opinions 173, 93 N.J.L.J. 125 (1970); 137, 91 N.J.L.J. 797 (1968); 123, 91 N.J.L.J. 97 (1968), and other opinions cited in Opinion 173, 93 N.J.L.J. 125 (1970).

    The New Jersey Supreme Court has set forth the basic

guidelines for decision in such cases as follows:

            Nonetheless the subject of land development is one in which the likelihood of transactions with a municipality and the room for public misunderstanding are so great that a member of the bar should not represent a developer operating in a municipality in which the member of the bar is the municipal attorney or the holder of any other municipal office of apparent influence.... The fact of such dual representation itself is contrary to the public interest. In the Matter of A. and B. Attorneys-at-Law, 44 N.J. 331 (1965); see also In re Kamp, 40 N.J. 588 (1963).

    The inquirer suggests that the situation could not be interpreted as a conflict of interest, "simply because the two matters are completely separate and distinct from each other." But such an observation is inappropriate with respect to transactions where one of the parties is a public agency. In such circumstances, the public interest is involved and an attorney may not represent conflicting interests even with the consent of all concerned after full disclosure. Drinker, Legal Ethics 120 (1953); Chief Justice
Weintraub in "Notice to the Bar," 86 N.J.L.J. 713 (1963); Ahto v. Weaver, 39 N.J. 418, 431 (1963); N.J. Advisory Committee on Professional Ethics, Opinion 100, 89 N.J.L.J. 696 (1966).
    The Committee therefore finds it unethical for the attorney to continue to represent the board of adjustment in a matter in which his firm is at the same time representing one of the principals of the applicant.

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