98 N.J.L.J. 822
September 25, 1975
Conflict of Interest
Municipal Court Judge's
Associate Member of Municipal Board
The inquirer has been requested to serve on the planning board
and board of health as a lay member and private citizen in a
borough where his employer and associate is the municipal court
judge. It is to be emphasized that his service on both boards will
be as a private citizen and not as a representative.
It is clear that it would be unethical and a violation of R. 1:15-1(c) if the inquirer were to serve as an attorney for the planning board or board of health. That rule, together with R.1:15- 4, would preclude a municipal court judge or any of his partners, or associates from representing any agency of the municipality or officer thereof. While the rule specifically precludes the municipal court judge from being associated in the practice of law with an attorney who is a member of the governing body, the rule specifically does not preclude the municipal court judge from being associated in the practice of law with an attorney who is a member of an agency of such governing body.
Even when the associate's employer does serve on the governing body and the associate seeks to appear in a representative capacity
before a board in the same municipality, there is no conflict where the board is autonomous.See our Opinion 44, 87 N.J.L.J. 297 (1964). Likewise, where, as here, the boards on which the inquirer seeks to serve are not in conflict with the office of the municipal court judge. Furthermore, here the inquirer will not even act as a legal representative on either board. Even if a conflict should occasionally arise, the inquirer could abstain from participating in any such action and his associate, the municipal court judge, could disqualify himself from hearing any such matter.
This Committee, in Opinion 44, 87 N.J.L.J. 297 (1964), recognized the possibility that a conflict could arise in which event both partners could disqualify themselves to avoid a probable conflict. This principle of occasional disqualification where conflict arises was also recognized in Opinion 59, 87 N.J.L.J. 741 (1964).
This Committee, as well as the New Jersey Supreme Court, recognized the necessity of avoiding apparent as well as real conflicts of interest. Reilly v. Ozzard, 33 N.J. 529 (1960). In Opinion 189, 93 N.J.L.J. 789 (1970), this Community reminded the bar that, "it is necessary not only to avoid actual wrongdoing, but even the appearance of wrongdoing." (quoting Opinion 187, 93 N.J.L.J. 649 (1970)).
Balancing this principle of avoiding apparent conflicts of interest, this Committee also recognizes as set forth in Opinion 28, 87 N.J.L.J. 106 (1964), that a "lawyer's experience and broad contacts render him especially equipped to serve on public bodies and to furnish to the public the benefit of his experience, skill and training. A municipality should not be deprived of this gratuitous advice for the public welfare."
The inquirer cites two Opinions of this Committee, namely, 28, 87 N.J.L.J. 106 (1964), and 102, 90 N.J.L.J. 1 (1967), both of which recognize that there is no conflict where an attorney serves as a lay member of an unofficial advisory committee appointed by the mayor, and still accepts legal matters involving the town. Likewise in 102, 90 N.J.L.J. 1 (1967), no apparent conflict was found on similar facts between the work of the proposed unofficial advisor body and the legal matters affecting the community.
As indicated above, it would be a clear notation of ethics were the inquirer to appear in a representative capacity on behalf of the planning board or the board of health of the municipality in which his associate serves as municipal court judge. See Opinions 149, 92 N.J.L.J. 185 (1969), and 182, 93 N.J.L.J.492 (1970). However, where the inquirer is asked to serve as a member of the planning board or board of health or any other board except the governing body, and is not serving in a representative capacity on behalf of those boards or agencies, there is no real or apparent conflict of interest, even though his associate or partner is the municipal court judge in the same municipality. In summary, therefore, this Committee recognizes the benefits flowing to a community from the public service of an attorney, and further recognizes that possible conflicts of interest can be avoided by disqualification where necessary. Since the inquirer is not serving in a representative capacity on or before the municipality or any of its agencies, there is no ethical reason why the associate or partner of a municipal court judge cannot serve in an individual lay capacity on any municipal board or agency except as a member of the governing body itself.