97 N.J.L.J. 809
October 17, 1974
Conflict of Interest
Attorney for Fire District Municipal Practice
An attorney has requested an opinion from this Committee on
whether it is unethical for an attorney representing the board of
fire commissioners of a municipality to appear before a municipal
court in the same town, representing a third party on a non-related
action. Recently, he attempted to appear before the municipal court
but was told by the court clerk and municipal judge that he would
not be able to do so because of his representation of the fire
This Committee has not previously passed upon the status of a fire district and whether an attorney employed by it would be precluded from appearing before the municipal court, council or other boards of the municipality. N.J.S. 40A:14-70 provides that a governing body may by ordinance designate a territorial location for use as a fire district and by resolution "provide for the election of a board of fire commissioners for the district" to consist of residents of the district.(Emphasis added). The commissioners are elected by ballot, N.J.S.40A:14-72 and the budget of the district is determined by referendum, N.J.S. 40A:14-78, and
the fire district when established has the same powers relating to fire prevention and extinguished "as in the case of municipalities." N.J.S. 40A:14-81. The vestigial power of the governing body is to dissolve the fire district after petition of at least 20 legal voters of the district. N.J.S. 40A:14-91.
On balance the fire district partakes more of the nature of an autonomous body than one subject to municipal control and as such its employees are not subject to limitations of practice in the municipality.
In N.J. Advisory Committee on Professional Ethics, Opinion 41, 87 N.J.L.J. 285 (1964), this Committee held that an attorney for a board of education elected under Title 18, Chapter 7, of the Revised Statutes, was not barred from representing individual clients before the various boards of the same municipality in which the school district is located. That was an elected board of education and as such was an autonomous body. See Botkin v. Westwood, 52 N.J. Super. 416 (App. Div. 1958).
Conversely, Opinion 77, 88 N.J.L.J. 463 (1965), concerned the propriety of an attorney, who was an appointed member of a board of education under Title 18, Chapter 6, of the Revised Statutes, in representing individual clients before the municipal court and various boards of the municipality, such as the zoning board, planning board, housing authority, etc. The inquirer was appointed by the mayor. Chapter 6 further provides for the appointment of a board of estimate which has veto power over the budget prepared by the school board. The board of estimate consists of five members, two from the governing body, two from the school board, and the mayor. The municipality, therefore, has some control over a board of education functioning under Chapter 6. It was our opinion that it would be improper for an attorney, who is an appointed member of a board of education functioning under Title 18, Chapter 6, to represent individual clients before the municipal court or the various boards of the municipality. Cf. Opinion 137, 91 N.J.L.J. 797 (1968).
Unless the governing body of the municipality controls the agency, in the sense of controlling its membership or its budget, the agency is not an adjunct of the municipality. Cf. Opinion 123, 91 N.J.L.J. 97 (1968), as to redevelopment agency or sewer authority.
Accordingly, we hold that since the fire district partakes more of an autonomous body than an adjunct of the municipality, its attorney may appear in the municipal court or before municipal agencies of the municipality.