116 N.J.L.J. 271
August 22, 1985
Conflict of Interest - Attorney
Member of Regional Planning Board
Representing Client in Litigation
Against Municipal Constituent of Board
This inquiry asks whether an attorney who is a member of the Regional Planning Board can represent a citizens group which seeks to overturn an ordinance passed by a municipality, which is a constituent member of the Regional Planning Board. The inquirer also asks whether it is material if he handles the action with or without a fee.
The second question is easily disposed because the basic concern here is determination of the propriety of the representation. Whether the attorney charges a fee for such representation is immaterial to the question as to whether the representation of the client is proper or improper.
With regard to the main question, the inquirer supplements his facts by stating that the Board is composed of representatives of several Government bodies and that he does not represent the municipality whose ordinance is to be challenged. The Regional Planning Board, which is an advisory board with no rule making or regulatory authority, has opposed the ordinance on environmental grounds, and the inquirer has presented the position of the Regional Planning Board at the municipal hearing. He has now been approached by the residents of the municipality with respect to a court challenge of the ordinance. We see no ethical problem in his handling the challenge to the ordinance. He is not the attorney for the Regional Planning Board, but rather serves as a member without fee. There would be an appearance of impropriety should he appear before that Regional Planning Board and that, of course, he cannot do, but to appear in court opposing a municipality with respect to the validity of an ordinance does not raise the same appearance of impropriety. Former Disciplinary Rule 8-101(A)(l) refers to a lawyer who holds public office and uses his public position to try to accomplish an act not in the public interest. That rule is not applicable to the present inquiry. Representation of the residents of the municipality in opposition to the ordinance is in line with the policy of the Regional Planning Board, and there appears to be no inconsistency raised by the inquiry. R.P.C. 1.11 (b) does not appear to be applicable to the inquiry either.