98 N.J.L.J. 126
February 6, 1975
Conflict of Interest
Board of Health Attorney
Planning Board Attorney
This question asks us to decide on the ethical propriety of an
attorney undertaking to be counsel to both the planning board and
the board of health in the same municipality.
We have dealt with the conflicts of interest of attorneys for planning boards also acting for boards of adjustment in our Opinion 127, 91 N.J.L.J. 262 (1968), and Opinion 164, 92 N.J.L.J. 831 (1969), reconsidered and modified in Opinion 199, 94 N.J.L.J. 225 (1971).
In Opinion 67, 88 N.J.L.J. 81 (1965), we held that the attorney for a municipality should not at the same time function as attorney for the planning board, board of adjustment or board of health or any other agency of that municipality if there is or may be a conflict of interest in the matters to be dealt with. In Opinion 149, 92 N.J.L.J. 185 (1969), we held that the same ethical considerations precluded a municipal attorney's associate from acting as attorney for the planning board and again in Opinion 117, 90 N.J.L.J. 745 (1967), that a municipal attorney may not act as adviser to the planning board in preparation of the master plan. A lawyer should decline employment where the interests of a client may impair the attorney's independent professional judgment as to the affairs of a proposed client. DR 5-105.
This principle applies with particular force in cases of multiple representation of public boards or agencies for the reason that the public cannot give consent after full disclosure. Opinion 4, 86 N.J.L.J. 357 (1963), Opinion 29, 87 N.J.L.J. 106 (1964), Opinion 277, 97 N.J.L.J. 33 (1974).
The public is ill-served when upon the event of conflict an attorney for two agencies has to terminate his services as to both clients. Where the potential for conflict is reasonably clear, multiple representation should be refused.
Local boards of health organized under N.J.S.A. 26:3-1 et seq. are autonomous governmental agencies which exercise locally a portion of the police power of the State in public health matters. Grosso v. City of Paterson, 55 N.J. Super. 164, 150 A 2d 94 (1959). Nevertheless, appointments to membership are made pursuant to local governing body ordinances or, in first class cities, by the mayor with confirmation of the body heaving charge of finances N.J.S.A. 26:3-5. And the local governing body has final say in the amount of money to be appropriated for local health purposes. N.J.S.A. 26:3-41. The general powers and duties of local boards of health are set out in N.J.S.A. 26:3-31 and include the regulation of water supplies, sanitary conditions of public eating places and the practice of plumbing. Nevertheless, board of health matters do not appear to be inherently in conflict with planning board matters. (Query whether a health board might be interested in the air pollution consequences of a slum clearance project?) In many jurisdictions the legal work for health boards is so limited that municipal attorneys are assigned to that world.
While reiterating the principles applied in the opinions above cited, it is the opinion of this Committee that a planning board attorney may also function as attorney to the local board of health except where a particular situation presents a conflict of interest, or where a clear potential for conflict is inherent in the actual functions of a particular board of health.