100 N.J.L.J. 290
April 7, 1977
Conflict of Interest
Partner, Zoning Board Attorney
An attorney asks whether he may hold a position as municipal prosecutor in a municipality where his partner is an attorney for the zoning board of adjustment.
The disciplinary rules (DR. 5-105 (D), our prior opinions (e.g., Opinions 182 and 277) and the Rules of Court (R. 1:15-4) clearly express the holding that if an attorney himself is required
to decline employment because of a potential or actual conflict, then no partner or associate of his may accept or continue such employment. Thus, the question presented may be couched in terms of whether it would be improper for one attorney to hold the two positions, i.e., municipal prosecutor and attorney for the zoning board of adjustment. In Opinion 91, we declined to rule on the question of whether an attorney for the zoning board of adjustment could also represent the municipality since it involved a question of incompatibility of offices which we felt was for the courts to decide and not this committee. We suggested in that case, however, that the dual representation would be improper on the basis of logic and of N.J.S.A. 40:55-36.2, since repealed but reenacted in pertinent part as N.J.S.A. 40:55D-71. This statute provides that an attorney for the zoning board must be someone "other than the municipal attorney." Clearly, a municipal prosecutor is a municipal attorney. He represents the municipality in prosecutorial functions. See State v. Zold, 105 N.J. Super. 194 (Law Div. 1969), affirmed o.b., 110 N.J. Super. 33 (App. Div. 1970), Opinions 5, 8, 182, 239, and 287.
We have also held that a municipal attorney may not act as advisor to the planning board (Opinion 117) and have questioned the propriety of a municipal attorney representing any other municipal agency (Opinion 67), holding there that such attorney could not represent any such agency in a case where there was an actual conflict, but declining to rule on the question of incompatibility of offices. We have, however, found that a municipal prosecutor's partner may, absent actual conflict, properly represent an adult community development corporation (Opinion 297), and that a planning board attorney may properly represent a board of health, in the same municipality (Opinion 300).
While there have been exceptions, we feel that, generally, we should not rule on a question of incompatibility of offices where it involves the same attorney. It is, however, appropriate to rule on the question where it relates to partners. In the present inquiry, it would appear that matters on which the attorney for the board of adjustment may have ruled or given advice to that board may also be pertinent to proceedings within the jurisdiction of the municipal prosecutor. On this basis, as well as on the basis of the general policy set forth in statute, rule and precedent, we believe it would be improper for a municipal prosecutor to be the partner of an attorney for the zoning board of adjustment.