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114 N.J.L.J. 69
July 19, 1984
ADVISORY COMMITTEE ON PROFESSIONAL ETHICS
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
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
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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