96 N.J.L.J. 1262
November 1, 1973
Conflict of Interest
County Planning Board Member
This inquiry concerns the propriety of an attorney, a member of the county planning board, representing private clients before
municipal planning boards within that county. The inquiry also relates to the propriety of such attorney-planning board member representing clients before other municipal agencies within the county.
The answer to the first part of the inquiry is clear. The attorney member of the county planning board should not represent clients before a municipal planning board. Reference to numerous former opinions of this committee establishes this principle beyond question. For example, N.J. Advisory Committee on Professional Ethics, Opinion 106, 90 N.J.L.J. 97 (1967), and Opinion 189, 93 N.J.L.J. 789 (1970), demonstrate that the controlling principle in
this inquiry is the interaction between DR 8-101 relating to attorneys as public officials and DR 9-101 regarding avoidance of appearance of impropriety.
The answer to the second part of the inquiry is less clear. N.J. Advisory Committee on Professional Ethics, Opinion 168, 93 N.J.L.J. 7 (1970), would at first reading appear - on the basis of its reasoning - dispositive of the issue as barring representation by such an attorney before all municipal agencies. We there held that an attorney for a county planning board (and by its expressed reasoning the opinion would apply to an attorney-member of the planning board) could not represent within the county persons accused of crime. If such representation constitutes a conflict or impropriety, then it is difficult to see how representation by such an attorney before any municipal agency would not be.
But our later N.J. Advisory Committee on Professional Ethics, Opinion 204, 94 N.J.L.J. 445 (1971), answering an inquiry relating to county counsel (a position of much wider scope than member of or counsel to the county planning board) approved a broad range of activities relating to municipalities in which the county counsel might properly represent private interests. The test applied in that opinion was whether there is "generally" a conflict. If not,
then the representation was approved unless in the particular case a conflict did exist.
Based upon this later test we believe that there is no impropriety - as a general proposition - in a member of the county planning board representing private clients before municipal agencies except in respect to matters relating to planning, zoning and the like. In view, however, particularly of DR 9-101 extreme care should be exercised by the official in question to avoid the
appearance of impropriety in such representation.
We note in passing that the attorney in question in his memo suggested - as a remedy for a situation where a conflict arose - his abstention from acting as a member of the county planning board in respect to that matter. We stress that the preferred solution is non-representation of the conflicting interest rather than the nonfulfillment of the function for which the official was elected or appointed.