99 N.J.L.J. 126
February 12, 1976
Conflict of Interest - Attorney Member
of Adjustment Board Suing Municipality
An attorney who is a member of a municipal zoning board of adjustment desires to represent a private client in an action against the municipality to prevent the granting of a final subdivision approval. There had been a preliminary approval by the planning board and the mayor and council of the municipality, and
the suit would also seek to declare the preliminary approval invalid.
The inquirer points out that neither he nor any of the other members of his law firm represents the municipality or any of its subdivisions. He believes that in suing the municipality he would not be violating DR 8-101(A)(2), which prohibits an attorney from
using his public position to influence or attempt to influence a tribunal to act in favor of himself or a client. He also refers to EC 8-8.
The real problem lies in the fact that the inquirer is part of the official family of the municipality. He proposes to represent an interest adverse to it, and we believe the public could reasonably infer that there was some communication among adverse interests. Such communication is, of course, forbidden by DR 7-104(A). We call attention to DR 9-101, having to do with avoiding even the appearance of impropriety. The inquirer's reference to EC 8-8 is appropriate:
A lawyer who is a public officer, whether full or part-time, should not engage in activities in which his personal or professional interests are or foreseeably may be in conflict with his official duties.
In Opinion 70, 88 N.J.L.J. 161 (1965), dealing with the question of whether it was proper for an attorney who is a member of a governing body to represent a client in matters dealing with the exercise of ministerial or administrative acts by officers of the municipality, we said:
In the subject inquiry there is an attorney-member of a governing body engaged on behalf of the public in the pursuit of legislative and administrative duties on behalf of the public. Though not an attorney client relationship, there is a fiduciary relationship to the public.
We referred to the fact that, where the public interest is involved and the action contemplated by the attorney affords a chance for
any public suspicion of impropriety, such action should be avoided.
While not precisely in point on the facts, we suggest that the inquirer also refer to Opinion 137, 91 N.J.L.J. 797 (1968); Opinion 186, 93 N.J.L.J. 617 (1970); and Opinion 206, 94 N.J.L.J. 451 (1971).
Accordingly, the proposed representation is disapproved.