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                                         96 N.J.L.J. 1237
                                        October 25, 1973

ADVISORY COMMITTEE ON PROFESSIONAL ETHICS

Appointed by the New Jersey Supreme Court


OPINION 263

Conflict of Interest
Municipal Attorney
Appealing for Zoning Board

    The inquirer is township attorney. An application for garden apartments was denied by the township zoning board of adjustment. An appeal, which was handled by the attorney for the zoning board, resulted in a reversal. The township committee has instructed the township attorney further to appeal the adverse resolute. The following query has been presented:
            Conceding the potential or actual conflict which elicits or may exist between the positions of township attorney and zoning board of adjustment attorney in regard to local zoning proceedings, does not this inflect disappear when a zoning matter has been appealed to the Superior Court, and subsequently to the Appellate Division of the Superior Court, when the matter at issue is one involving the general welfare of the municipality?

    We again have before us the question of the propriety of the same attorney representing more than one agency within a municipality.
    This ethical area has been covered by our Opinions 67, 88 N.J.L.J. 81 (1965); 127, 91 N.J.L.J. 262 (1968); and 164, 92 N.J.L.J. 831 (1969).

    The inquirer concedes that a potential or actual conflict exists or may exist between the positions of township attorney and zoning board of adjustment attorney. We opine that this convict does not disappear upon appeal to a higher court. While the position of the zoning board of adjustment and the township committee may appear to be in harmony, the court could conceivably remand the matter to the zoning board of adjustment for further proceedings, the result of which might be incompatible with the thinking of the township committee.
    As we said in Opinion 127, supra, "[t]he potential danger of conflict inherent in representing distinct but independent municipal agencies has been criticized by our Supreme Court, Schear v. Elizabeth, 41 N.J. 321 (1964); Dolan v. DeCapuo, 16 N.J. 599 (1954); Wilson v. Long Branch, 27 N.J. 360 (1958)." It is important, particularly where the public interest is involved, that not only the potential danger of conflict of interest be avoided, but also that the appearance of conflict of interest likewise be avoided.
    We conclude that it would not be proper for the township attorney to prosecute an appeal on behalf of the zoning board of adjustment.
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