Conflict of Interest
Application of Perillo Guidelines
to Unpaid County Appointments
The inquirer, a partner in a medium size law firm asks whether
he may accept appointment as an unpaid member of either the County
Planning Board, County Park Commission or the County College. The
firm is engaged in general practice with heavy emphasis in the
field of real estate and, in this connection, the firm regularly
finds it necessary to apply on behalf of its clients for
subdivision approvals, site plan approvals and the like in various
municipalities and there is necessary communication with various
The real problem is not whether the inquirer may accept appointment to any of these governmental entities, but rather what matters the firm may thereafter be obliged to decline in view of the position of the partner on the public body. It is obviously impossible for the Advisory Committee on Professional Ethics to forecast and rule upon the endless variety of possible conflicts. We have frequently noted the fact that it is desirable that attorneys contribute their "experience, skill, and training" for the benefit of the public by accepting public service. See, for example Opinion 102, 90 N.J.L.J. l (1967) and Opinion 395, 101 N.J.L.J. 417 (1978). On the other side of the scale is the fact that serving the public necessarily precludes the attorney from accepting matters where "... a person generally familiar with the affairs of the [municipality] could reasonably believe that an attorney in such a position would be subject to and hindered by a professional conflict of interest." Perillo v. Advisory Committee on Professional Ethics, 83 N.J. 366 (1980).
We have written a great many opinions in response to particular inquiries in this area; see for example, Opinion 485, 107 N.J.L.J. 574 (1981) dealing with a County College Trustee practicing before County agencies; Opinion 489, 108 N.J.L.J. 525 (1981) dealing with Assistant County Counsel also acting as Special Counsel to a municipality within the county; Opinion 490, 108 N.J.L.J. 525 (1981) dealing with restrictions upon the practice of those who serve as county tax board members. In every one of these opinions the Committee has been guided by the principles laid down by our Supreme Court in the Perillo case. This inquiry asks that the Committee, in effect, assign varying weights to factors which might be considered, such as the scope of the public service, whether narrow or broad, and whether the service is compensated. Also, whether the role occupied is of such degree of prominence of the governmental structure as to give rise to "an appearance of conflict." We are not disposed to interpret the Perillo decision by an endeavor to develop any such formula approach to these problems. Except to note that the question of whether the appointive position carries with it any compensation is entirely irrelevant, we think it is our duty to refer this inquirer to the standards set forth by the Supreme Court in the Perillo ease.
In summary, whenever a lawyer accepts a public position in a community, whether or not paid for such service, it is obvious that he runs the risk of being obliged to decline a matter tendered to him in the future by virtue of his occupancy of the public post. It is his burden to decide whether acceptance of the matter tendered would be violative of the standards laid down in the Perillo decision at the time that the matter is offered to him. In addressing these questions, the attorney may profitably refer to opinions of this Committee which has in the past and will in the future consider inquiries in specific fact situations, but in the first instance the attorney himself must decide whether he should accept a proffered appointment to a position of public trust and confidence. The restrictions upon his practice which necessarily inhere in the circumstances can only be dealt with on a ease by ease basis as they arise.