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88 N.J.L.J. 161
March 18, 1965
ADVISORY COMMITTEE ON PROFESSIONAL ETHICS
Appointed by the New Jersey Supreme Court
OPINION 70
Member of Governing Body Before Local Agencies
This inquiry deals with the firm of which one partner is a
member of the local governing body; and it is divided into three
questions:
1. Is it proper for a law firm to represent clients
before the board of adjustment, planning board or
governing body of a municipality, where a member of
the firm is a member of such governing body?
(a) Where such firm appears before the governing
body, is it sufficient compliance with
professional ethics for the member of such
body to disclose to that body his relationship
to the applicant's attorney and then to
abstain from discussion and voting by
absenting himself from the proceedings?
(b) May the lawyer-member of the governing body
thereafter personally represent those clients
of his firm (who formerly had matters before
the governing body) in respect to leasing,
financing, developing or selling the property
concerned in the proceeding before the
governing body?
2. Where a client has a proceeding pending before a
governing body or its agency, and the
attorney-member of the governing body abstains from
participating in the decision affecting such
person, may the firm of that attorney represent
such person during proceedings in matters having no
relation to the proceedings before the governing
body or its agency (e.g., matters wherein local
agency approval is not required and matters in
other municipalities)?
(a) Where a person prior to retainer has been
before the governing body or an agency of
a municipality and after that matter is
concluded, seeks to retain a firm of
which one attorney is a member of the
governing body of that municipality, may
that firm thereafter represent such
person in matters having no relation to
the proceeding such person had before the
local agency?
3. Is it proper for an attorney who is a member of a
governing body to represent a client in matters
dealing with the exercise of ministerial or
administrative acts by officers or agents of that
municipality, e.g, applications for licenses or
permits?
This Committee's jurisdiction is not concerned with the
conduct of a public official, as such; but where that official is
an attorney, his behavior is nevertheless subject to the ethical
standards of his profession, even though there be no attorney-
client relationship concerned. In re Genser, 15 N.J. 600, 606,
(1954), 7 C.J.S.,sec. 24, Nonprofessional Misconduct, p. 762. In
the subject inquiry there is an attorney-member of a governing body
engaged on behalf of the public in the pursuit of legislative and
administrative duties on behalf of the public. Though not an
attorney-client relationship, there is a fiduciary relationship to
the public.Cf. R.1:26-3(d), prohibiting an attorney-member of a
governing body from practicing in the municipal court of that
municipality. Thus, the problem of conflicting interests is present
even though the attorney has no function as an attorney for the
governing body before which a client of his firm appears.
The answer to question 1 is clearly in the negative. The
proposed disqualification and abstention from discussion and voting
in 1 (a) do not avoid the question. See this Committee's Opinions
15, 86 N.J.L.J. 734 (1963); 22, 87 N.J.L.J. 13 (1964); 24, 87
N.J.L.J. 19 (1964); and 37, 87 N.J.L.J. 190 (1964).
Question 1 (b) concerns the propriety of an attorney
representing private parties following the conclusion of such
clients' proceedings before the governing body of which he is a
member. An attorney serving on a public body must be particularly
scrupulous to see to it that there is no reason for the public to
suspect improprieties in his professional activities.
The facts in question 1(b) invite the suspicion that the
private employment in matters subsequent to public proceedings was
a reward for the attorney's earlier favorable vote or influence.
Lawyers are encouraged to serve on public bodies. See our
Opinion 28, 87 N.J.L.J. 106 (1964). Such public service is a
tradition that is particularly honored in the State of New Jersey.
Experience shows that some developers deem it practical to
arrange for the employment of attorneys who are members of public
bodies whose aid may be needed in the preliminary work of their
developments. Even if there were no contact between the client and
the attorney prior to the participation of the attorney in the
deliberations of the public body, his later employment by the
successful developer can only lead to a breakdown in respect for
the public official, for the bar and for the rule of law. The
answer to question 1 (b) is in the negative.
Question 2 differs from 1 in that the subject of the client's
retainer deals with matters wherein no local official approval or
action was required. As so stated, the representation by the
attorney is not objectionable.
It is the opinion of this Committee that the conduct described
in question 2 (a) exhibits no improprieties. However, the Committee
cautions that an attorney who is a member of a governing body or
local board should exercise self-restraint in accepting employment
even on matters unrelated to proceedings had before him where the
client in fact did present a question to such public body for its
action and he participated in the vote. A regular course of
accepting professional employment from persons who appear or have
appeared before a public body in which the attorney participates
can only lead to suspicion and the appearance of impropriety
however remote the subject matter of the employment may be from the
subject matter of the proceeding before the public body.
Question 3 concerns the possible influence of the
attorney-member of the governing body on the ministerial and
administrative acts of the employees of the municipality. Attorney-
members of governing bodies should exercise care in their
professional contacts with municipal employees. The use of
influence as a member of the public body to which the employee is
responsible offends Canons of Professional Ethics, Canon 26, which
proscribes: "... means other than those addressed to the reason and
understanding, to influence action." In the opinion of this
Committee, the conduct in question 3 is improper.
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