99 N.J.L.J. 588
July 1, 1976
OPINION 337
Municipal Attorney Reviewing
Deeds Required by Planning Board
The inquirer is a township municipal attorney. The township's
administrative code provides for the general administrative
organization of the township government and states that among his
duties the township attorney "shall prepare or approve all legal
instruments relating to the business of the township."
The township has a planning board which does not have an
attorney and which, the inquirer states, he does not represent. It
is common for the planning board to condition some of its actions
(such as the granting of a subdivision approval) upon the delivery
of a deed to the township conveying land or an easement in land for
road widening, utility or similar purposes. The township manager,
upon receiving either drafts of the instruments or the executed
instruments, refers them to the attorney for approval prior to
acceptance by the township. The data submitted to this Committee
indicate that the township attorney also prepared and revised deeds
of easement to the township which were required from a developer by
planning board action. The attorney charged the township for these
services and was paid by it.
The township has a land subdivision ordinance which provides
in part that all costs and expenses connected with an application
for approval of a subdivision shall be charged to the developer in
accordance with a fee schedule which, as to legal services,
provides that the "developer shall be charged an amount equal to
all expenditures made by the township for legal services rendered
to the township in relation to an application for approval of a
plan of subdivision." The township after payment of the attorney's
bills for services requires reimbursement from the developer under
the terms of the fee schedule.
A developer has challenged the township's practice of seeking
reimbursement for the attorney's fee on the basis that under our
Opinion 117, 90 N.J.L.J. 745 (1967), the township attorney may not
represent both the township and the planning board. The inquiry is
whether a municipal attorney may ethically review deeds and drafts
of proposed deeds to the municipality required by the planning
board and submitted by developers for approval and acceptance by
the municipality and, if so, may he advise municipal administrative
officers regretting them.
We have considered the potential danger of conflict of
interest arising when the same attorney represents distinct but
independent municipal agencies, which practice has been criticized
by the Supreme Court in Schear v. Elizabeth, 41 N.J. 321 (1964).
See our Opinions 127, 91 N.J.L.J. 262 (1968); 149, 92 N.J.L.J. 185
(1969); 164, 92 N.J.L.J. 831 (1969), as modified by 199, 94
N.J.L.J. 225 (1971). We reiterate what has been our consistent
position. A municipal attorney cannot serve as attorney for any
other board or agency of the same municipality if there is or may
be a conflict of interest in a particular situation. See Opinions
67, 88 N.J.L.J. 81 (1965), and 117, supra.
The review, revision or preparation by the municipal attorney
of a deed of easement to the municipality which a developer is
required by the municipal planning board to execute and deliver
incident to subdivision approval is not unethical. The attorney in
such a case is properly representing the municipality which is
entitled to have its interests properly protected. We see no
conflict in this matter. The propriety of the municipality's
requiring the developer to reimburse it for the municipal
attorney's fees incident to the performance of his services
involves a matter of law as to which we express no opinion.