88 N.J.L.J. 581
September 9, 1965
OPINION 82
Attorney for Municipality,
Municipal Agencies, Developers
This inquiry, as stated by the writer, follows a reading of
the per curiam opinion of the Supreme Court of New Jersey, In the
Matter of A.& B. Attorneys-at-Law, 44 N.J. 331, decided April 12,
1965, dealing with municipal attorneys representing developers.
Two questions are propounded, which in the opinion of the
writer are not dealt with by the Court, and on which the opinion of
this Committee is sought:
Question One. A Sewer Authority has its
members appointed by the governing body of the
municipality, but it operates as a separate
entity. It is commonly acknowledged to be the
alter ego of the municipality. My experience
has been that sometimes the members of the
Sewer Authority are at odds with the
municipality. In the case of one Authority we
represent a sewer leak resulted in undermining
a few feet of pavement and the municipality
threatened to sue the Authority unless it
repaired the pavement. I know of no instance
where a Sewer Authority could favor a
developer, and I know of no instance where the
developer has sought to enter the sewer system
of a municipality separate from where the
developer's land is situated. Question: Is the
attorney of a Sewer Authority barred by the
Court's opinion from accepting employment from
a developer?
Question Two. A municipality desires to
put in a trunk water line for a new supply of
water. Is an attorney barred from accepting
employment for that particular project because
he happens to represent some developers both
in the municipality putting in the pipe line
and in the municipality through which the
major portion of the line will run? The line
would extend from the river to the municipal
filtration plant. It serves no developer and
no other customer and is purely a source of
supply. Question: Is an attorney representing
a developer forbidden from accepting the
municipal employment?
A second letter from the attorney by way of supplement to the
first is a statement that his law firm is the attorney for
Municipality A, and under the recent opinion of the Supreme Court
of New Jersey, he assumes they are not at liberty to represent
either of two developers in this municipality so long as they
remain counsel to said municipality. The writer further states he
believes "the Court's Interpretation will raise the general
standards of the Bar," and is in favor of it even though it results
in the office no longer representing Municipality A.
Further statements are to the effect that the law firm has two
matters pending, one in litigation, for Municipality A, which it
would like to carry through to completion.
Next he states, another member of the firm represents
Municipality B and there are numerous developments there, in which
his office represents a number of developers. This member of the
firm realizes that the Court's decision requires him to resign as
counsel to Municipality B. Further, this member of the firm
represents a Utility Authority in Municipality B which is a
separate municipal body, whose members are appointed by the
governing body "and in many repeats it is the alter ego of the"
municipality. The writer can see no conflict of interest in
continuing to represent the Utility Authority and gives an
explanation that the Authority is low on finances and struggling
to get along.
Lastly, the writer organized and represents a Sewerage
Authority in Municipality C which contracts with three individual
units located in Municipality B. When the sewer system is completed
by the Authority in Municipality B the three units will transfer
there. The writer can see no conflict in continuing to represent
the Sewerage Authority in Municipality C.
It is the opinion of this Committee that it would be unethical
for the attorney for the municipal body or agency to perform the
services outlined in the two questions initially submitted by the
writer. And further, that the opinion of the Court, In the Matter
of A. & B. Attorneys-at-Law, supra, is controlling of the issues
presented in the two questions:
Nonetheless the subject of land
development is one in which the likelihood of
transactions with a municipality and the 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.
The fact of such dual representation
itself is contrary to the public interest. 44
N.J. at 334-5; (emphasis added).
The Court holds that representation by municipal attorneys or
the holders of any other municipal office of apparent influence,
while also attorneys for the land and building developers in that
municipality, violates Canons of Professional Ethics, Canon 6.
What should be done with those pending matters the writer
would like to complete, may find an answer in the additional views
expressed by Justice Schettino in his option, specifically the last
sentence:
Moreover, as the Court's opinion here is
in the nature of an advisory one, I would, as
to any attorney presently in such a situation,
require him, within a reasonable time
hereafter, to free himself of such
entanglements. 44 N.J. at 337.
This Committee has heretofore stated in N.J. Advisory
Committee on Professional Ethics, Opinion 69, 88 N.J.L.J. 97
(1965):
All that we have said concerning the
municipal attorney and the municipality he
represents applies with equal force to an
attorney representing any municipal board,
agency or other public body.
It is therefore unethical for an attorney to represent a Utility
Authority in the same municipality in which he represents
developers.
This Committee finds no conflict of interest in members of the
same law firm representing the Sewerage Authority in different
municipalities under the circumstances set forth.