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                                         114 N.J.L.J. 69
                                        July 19, 1984


Appointed by the New Jersey Supreme Court


Member of Governing Body
Appearing Before Municipal Agencies

    The inquiry presented is:

    "After an attorney member of a law firm has been elected to the office of municipal councilman, may (his) law firm which has represented a local builder for a number of years, continue to represent said builder -
    A.    Within the municipality?
    B.    In various matters of litigation unrelated to municipal affairs?

    C.    Before boards and agencies in municipalities other than that in which elective office is held?

    D.    At all?"

    The inquirer states that these questions arise because of the need for interpreting the following language set forth in In re A. and B. 44 N.J. 331, 334 (1965):
        Nonetheless, the subject of land development is one in which the likelihood of transactions with a municipality and 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. (underscoring ours)

    The inquirer neglected to set forth the most important part of the Court's opinion which continues on at pages 334 and 335 as follows:

        We all know from practical experience that the very nature of the work of the developer involves a probability of some municipal action, such as zoning applications, land subdivisions, building permits, compliance with the building code, etc.

        It is accordingly our view that such dual representation is forbidden even though the attorney does not advise either Opinion 538 the municipality or the private client with respect to matters concerning them. The fact of such dual representation itself is contrary to the public interest.

    Our Supreme Court quoted the above language in In re Dolan 76 N.J. 1, 7-8 (1978), and referring to it, said:
        While in a sense this rule may be deemed somewhat harsh, particularly in a situation where, as here, the representation of both municipality and developer was at no time in connection with a transaction involving both clients, we are strongly of the view that the public interest demands strict adherence to the letter of In re A. and B., supra. A municipal attorney's public obligations are such that he must take particular pains to avoid the shadow of suspicion which inevitably is cast when he begins to entangle himself in a representative capacity in the legal affairs of a developer operating within the municipality.

    In addition to the foregoing, we refer the inquirer and the bar at large to Opinion 70, 88 N.J.L.J. 161 (1965); Opinion 37, 87 N.J.L.J. 190 (1964); Opinion 77, 88 N.J.L.J. 453 (1965); Opinion 322, 99 N.J.L.J. 126 (1976).
    The basic rule is that a lawyer 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. Though not an attorney-client relationship, there is in these situations a fiduciary relationship to the public which demands that the lawyer adhere strictly to the ethical standards of his profession. This rule extends to his firm as well.
    Subject to this basic rule the answer to the foregoing inquiry and its several parts is affirmative provided such representation does not extend to the representation of any client before the municipal court, the municipal boards and agencies and the municipal council of the municipality in question.

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