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86 N.J.L.J. 357ADVISORY COMMITTEE ON PROFESSIONAL ETHICS
June 27, 1963
Appointed by the New Jersey Supreme Court
Conflict Of Interests
Question No. 1
A firm of attorneys representing several municipalities
inquire whether they may properly appear to represent applicants
before the board of adjustment of said municipalities in a case
arising under N.J.S.A. 40:55-39(b) or (c).
R. 1:26-7(b), as it read before the general revision of R.
1:26, effective January 2, 1963, provided as follows:
(b) An attorney shall not practice before the
governing body, or any official, or any official board or
agency of a municipality in which he or his partner,
employer, employee or office associate is the municipal
attorney, except where he is appearing as or on behalf of
the municipal attorney or the municipality.
This rule clearly indicated the impropriety of an attorney
appearing before any municipal board on behalf of anyone other than
the municipality, where the attorney, or his partners, associates
or employees, was serving as the municipal attorney.
The general revision of R. 1:26, however, made by the Supreme
Court effective January 2, 1963 omitted this specific provision
from the rules. The history of the revision, nevertheless, makes it
plain that the Supreme Court did not intend by its deletion to
modify, relax or suspend in any way any applicable Canons of
It will be recalled that in its report of April 12, 1962, the
Supreme Court's Committee on Rules, which had studied this rule,
submitted for the consideration of the Supreme Court and the bar
three alternative points of view as to the scope of the rule and
the basis for its revision:
(1) It should be left substantially as it was, but be
(2) It should be extended to cover other situations where
improprieties might exist; or
(3) It should be restricted in scope so as to impose
limitations on the practice of only part-time judges and those
employed by or serving a court or a judge, with any limitations on
other attorneys extending only to their practice in the courts. On
the basis of this alternative, the rule would then be more directly
aimed at preserving the integrity of and public confidence in the
courts, as distinguished from the legal profession, with the
control of the conduct of the members of the bar generally being
left to the Canons of Professional Ethics.
See the full report of the Committee in 85 N.J.L.J. 193, 200.
In submitting its proposal, the Committee stated as its reason
(85 N.J.L.J. 200):
Reason: Following the amendments to R. 1:26 effective in
September, 1961, which amendments merely codified
previous interpretations to the rule, the Supreme Court
received numerous objections to the rule, as amended. As
a result the Committee on Rules was requested by the
Supreme Court to review R. 1:26, and particularly R.
1:26-8(b). In pursuance of this assignment the Committee,
by appropriate notices in the New Jersey Law Journal,
invited the written comments of members of the bar and
also held a public hearing on the rule in December, 1961.
Thereafter the Committee reported to the Supreme Court
and on February 5,1962 an amendment to R. 1:26-8(b) was
adopted. In the order promulgating the amendment, the
Supreme Court specifically stated that it "is not to be
considered in any way a modification, relation, or
suspension of any of the Canons of Professional Ethics
(see in particular Canons 3, 6 and 26)" and directed the
Committee to "continue its study of R. 1:26 in its
entirety and submit its report thereon, including any
recommendations for the amendment thereof, for
consideration of the forthcoming Judicial Conference."
The revision adopted by the Supreme Court followed the third
alternative proposal submitted by the Committee for consideration.
In commenting on the rule changes adopted by the Supreme
Court, an editorial in the New Jersey Law Journal of December 20,
1962 noted (85 N.J.L.J. 672):
Ethical discipline has been another focus of the year's
work. Responding to a long felt need at the bar, the
Court has created an Advisory Committee on Professional
Ethics (R. 1:26A) to furnish advisory opinions concerning
professional conduct under the Canons of Professional
Ethics, as well as other rules of court governing or
limiting the practice of attorneys. Freedom from the
inhibitions of particular litigated controversies should
give new scope and perspectives to the evolution of
ethical doctrine. In a related context, the Court has
restudied and tightened the limitations on practice of
attorneys. New R. 1:26 regroups and clarifies the
limitations upon: (1) judges, surrogates and
magistrates,; (2) attorneys who are clerks or deputy
clerks of any court or employed in judicially related
activities; and (3) a miscellaneous category of attorneys
holding other official positions concerned with the
administration of justice, including attorneys who are
members of a governing body and municipal attorneys. In
another direction, the former restraints against private
appearances by the municipal attorney and associates
before local governing bodies, boards and agencies have
been exercised, thereby committing such issues to
government by the more generalized restraints of the
Canons of Ethics against conflicts of interest, pending
The determination of the question presented is accordingly not
governed by any specific provision of the rules, other than R.
1:25, which generally provides that the Canons of Professional
Ethics shall govern the conduct of members of the bar of this
The inquiry submitted presents no factual details as to the
particular case involved, or in what respects or capacities the
firm or its personnel have rendered legal services in the past
relating to any of the matters that might be involved in the
particular case. It is accordingly impossible to give an opinion as
to whether such representation in the particular case would violate
the Canons of Professional Ethics for lack of such specifics.
The question remains, however, whether such representation of
a private client before a board of adjustment by a municipal
attorney or his firm or employees or associates would be per se
inconsistent with the Canons of Professional Ethics (see in
particular the Preamble, Canons 6, 26, 29, and 36).
Although the inquiry does not present factual details as to
the relationships between the municipal attorney and the board of
adjustment in the municipality in which the case in question is
presented, the Committee is aware that in some municipalities the
board of adjustment is represented by the municipal attorney - the
propriety of which has been criticized in the cases of Dolan v.
DeCapua, 16 N.J. 599, 613 (1965) and Wilson v. Long Branch, 27 N.J.
360, 396 (1958), certiorari denied 358 U.S. 873, 3 L. Ed. 2d 104
(1958) - and in others by a separate attorney. Nevertheless, it is
the opinion of the Committee that in any case the municipal
attorney is so identified in the public eye with the legal affairs
of the municipality in general that it would be improper for him to
appear before a board of adjustment in matters presented on behalf
of a private litigant.
In a broad sense an attorney representing a municipality or
any of its agencies has as his "client" the entire municipality,
and he should avoid any retainers from others which may place him
in a position where he appears to be either seeking relief or favor
from the municipality or any of its agencies for a private client
or to oppose action by the municipality or its agencies on behalf
of a private client. If he did so, it would be inevitable that, if
he were successful, the losing litigant, or the public in general,
would be troubled by suspicion that his success in the matter was
attributable to improprieties and that his position or influence as
a municipal attorney might have furthered the cause of the private
While an attorney representing two private clients may
properly act in exceptional cases with the consent of each, even
though a possibility of conflicting interests exists, consent is
generally unavailable where the public interest is involved. See
Drinker, Legal Ethics 120 (1953).
Question No. 2
The same firm has inquired whether it would be proper for them
to appear on behalf of a private person in a matter before a board
of adjustment in a municipality where they are not the municipal
attorney, but where they have been retained by the board of
adjustment as special counsel to defend it in a different case (the
Committee assumes that such retention is not on a recurring basis).
The Committee is of the opinion that such an appearance would be
improper while the other case is pending.
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