Rutgers School of Law, OAL case acp413

102 N.J.L.J. 569
December 28, 1978

ADVISORY COMMITTEE ON PROFESSIONAL ETHICS

Appointed by the New Jersey Supreme Court

OPINION 413

Conflict of Interest
Municipal Attorney Drawing
Rental Ordinance; Associates,
Landlords or Representatives

    The inquirer is borough attorney of a municipality in which one of his partners owns a small apartment building and an associate represents the landlord of an apartment complex in summary dispossess actions. He inquires as to whether these activities prohibit him from participating in the drafting of ordinances dealing with rental leveling and rent control.
    This question has not previously been decided, but it bears a resemblance to the problems arising from municipal attorneys or their associates representing developers in the same municipality It has generally been held improper to do so. See Opinion 90, 89 N.J.L.J. 241 (1966), and Opinion 85, 88 N.J.L.J. 631 (1965), which quoted In Re A and B, 44 N.J. 331, 334 (1965), as follows:
            Here, as we have said, we do not find the respondents represented the developers in the developers' dealings with the municipality. Although for this reason there is no literal notation of Canon 6, nonetheless that Canon does not exhaust the ethical responsibility of the bar in this area. It is fundamental that no attorney who holds a public office should suffer anyone to attempt to gain an advantage by virtue of his official status, and hence it would be improper for an attorney so situated to accept a retainer if he is aware that the prospective client has that objective in mind.

            We do not suggest that the members of the bar must receive a prospective client with unbecoming suspicion, nor of course do we suggest that an attorney for a municipality may not represent individuals or interests located therein merely because it may come to pass that the private client will have some transaction with the municipality.

            Nonetheless the subject of land development is one in which the likelihood of transactions with a municipality and the room for public misunderstanding are so great that a member of the bar should not represent a developer operating in a municipality in which the member of the bar is the municipal attorney or the holder of any other municipal office of apparent influence. We all know from practical experience that the very nature of the work of the developer involves a probability of some municipal actions such as zoning applications, land subdivisions, building permits, compliance with the building code, etc.

    In our Opinion 401, 102 N.J.L.J. 80 (1978), a part-time municipal solicitor requested an opinion on the propriety of his representing a buyer of realty within the municipality for which
he was solicitor, and the propriety of representing a developer of property within the municipality in matters unrelated to the property being developed.
    We held that the latter question was answered in our Opinion 90, supra, and that the solicitor would not be prohibited "from representing the purchaser or seller in a sale of a developed single-family house or commercial or industrial property which would not require municipal approval. We stated that great discretion is required as to vacant land or any piece of property as to which it could reasonably be anticipated that further development may be necessary requiring approval of municipal agencies. An attorney must avoid even the appearance of impropriety, and an attorney who is a public officer should not engage in activities in which his personal or professional interests are, or foreseeably may be, in conflict with his official duties[,] DR 9-101, Opinion 322, 99 N.J.L.J. 126 (1976). Therefore, if there is any possibility of development of the property in the foreseeable future or the necessity for municipal approvals of one sort or another, the municipal attorney should not accept the employment. Cf. In Re Dolan, 76 N.J. (1978).
    In the present inquiry, we are troubled by the fact the solicitor's legal associate represents the owner of a residential complex in the same municipality and handles summary dispossess actions; and that when this client has matters in the municipal court, etc., he uses other counsel and the municipality also uses other counsel. We are also concerned that his partner owns a small apartment building in the municipality as an investment.
    R. 1:15-4 places the solicitor, his partners and associate basically in the same posture. It may well be that the handling of the development of raw land by an attorney is fraught with more exposure to conflicts of interest than the handling of rented properties and the drawing of rent control and rent leveling ordinances.
    However, this question should not be decided on a comparative basis. We must determine whether there is a potential conflict of interest. It is our opinion that the solicitor should disqualify himself from drawing rent leveling and rent control ordinances where his partner owns and operates an apartment and his associate represents the landlord of a residential complex.
    As we stated in Opinion 88, 89 N.J.L.J. 49 (1966):
            Running through all our opinions, in this area of conflict, is the prevailing theme that, where the public interest is involved, every situation which affords a chance for impropriety, however slight, should, if possible, be avoided in order to eliminate public suspicion that an attorney in public office will use his position or influence in behalf of a client. And this is so whether he is the attorney for or a member of a public body, board or agency. In this respect the language of the ABA Comm. on Professional Ethics and Grievances, Opinion 49 (1931), is particularly appropriate. The committee said:

            If the profession is to occupy that position in public esteem which will enable it to be of the greatest usefulness, it must avoid not only all evil, but must likewise avoid the appearance of evil.

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