Rutgers School of Law, OAL case ACPE004

86 N.J.L.J. 357
June 27, 1963

ADVISORY COMMITTEE ON PROFESSIONAL ETHICS

Appointed by the New Jersey Supreme Court

OPINION 4

Conflict Of Interests
Municipal Attorneys

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 Professional Ethics.

    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 clarified; or
    (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 further study.

    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 State.
    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 client.
    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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