88 N.J.L.J. 81
February 11, 1965
Attorney for Other Municipal Agencies
The following inquiry is presented:
May a municipal attorney also be the
attorney for the planning board, zoning board
of adjustment, or health and education boards
in the same municipality?
Canons of Professional Ethics, Canon 6 precludes an attorney
from representing conflicting interests. The canon provides:
...Within the meaning of this canon, a
lawyer represents conflicting interests when,
in behalf of one client, it is his duty to
contend for that which duty to another client
requires him to oppose. ... .
The position of the municipal attorney in representing the zoning board of adjustment was criticized in Dolan v. DeCapua, 16 N.J. 599, 614 (1964), and Wilson v. Long Branch, 27 N.J. 360, 396 (1958), certiorari denied 358 U.S. 873, 3 L.Ed. 2d. 104 (1958).
Our law reports are replete with cases in which the municipal governing body, the planning board and the board of health have entertained conflicting points of view. Botkin v. Westwood, 52 N.J. Super. 416 (App. Div. 1958), held that the board of education was an autonomous body, and that insofar as the municipality was concerned, neither had any right to interfere with the other.
In N.J. Advisory Committee on Professional Ethics, Opinion 4,
The test of the common law rule that one
may not hold incompatible offices is, as the
rule itself, an ancient one. The classic
statement in this state is found in State ex
rel. Clawson v. Thompson, 20 N.J.L. 689 (Sup.
...Where there is no express (constitutional or statutory) provision, the true test is, whether the two offices are incompatible in their natures, in the rights, duties or obligations connected with or flowing out of them. Offices, says Bacon, are incompatible or inconsistent, when they cannot be executed by the same person; or when they cannot be executed with care, and ability; or where one is subordinate to, or interferes with another. Bac. Abr. Tit. "Office" K. (at page 422)
In our opinion, a municipal attorney cannot serve as attorney for any board or agency of the same municipality if there is or may be a conflict of interest in a particular situation. We occupiers no opinion as to whether the representations are incompatible.