Link to original WordPerfect Document

                                         88 N.J.L.J. 631
                                        September 30, 1965

ADVISORY COMMITTEE ON PROFESSIONAL ETHICS

Appointed by the New Jersey Supreme Court

OPINION 85

Magistrate's Representing Developer

    A part-time municipal magistrate who is permitted to practice law having been advised by the Supreme Court that the limitations on the representation of clients set forth in In Re A. and B., 44 N.J. 331 (1965), apply to municipal magistrates as well as to municipal attorneys presents the following inquiries:
    1.    May the Municipal Magistrate represent a builder in the municipality in the latter's purchase of land when

            a.    The land is subsequently to be subdivided and sold as individual homesites?

            b.    The land is to be retained by the builder and an apartment house or commercial buildings built thereon?

    2.    May a Magistrate represent an individual client with regard to the purchase of a piece of property and the mortgage financing thereon when the use to which the property will be put requires a variance or a subdivision, which latter two actions will be handled before the local planning board or board of adjustment by other counsel?

    Our Supreme Court stated in In re A and B., supra:
            Here, as we have said, we do not find the respondents represented the developers in the developers' dealings with the municipality. Although for this reason there is no literal violation of Canon 6, nonetheless that canon does not exhaust the ethical responsibility of the bar in this area. It is fundamental that no attorney who holds a public office should suffer anyone to attempt to gain an advantage by virtue of his official status, and hence it would be improper for an attorney so situated to accept a retainer if he is aware that the prospective client has that objective in mind.

            We do not suggest that the members of the bar must receive a prospective client with unbecoming suspicion, nor of course do we suggest that an attorney for a municipality may not represent individuals or interests located therein merely because it may come to pass that the private client will have some transaction with the municipality.

            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. 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 clear from the inquiries and further information supplied by the magistrate that the land purchase for which his service as a lawyer is sought definitely contemplates proceedings before other municipal bodies and therefore does not come within the permitted representation suggested by the court's language that "merely because it may come to pass that the private client will have some transaction with the municipality" such client's representation by an attorney-municipal official should not be barred. In the foregoing questions, it is certain that after the purchase of the land there will be applications to municipal agencies for favorable consideration of one sort or another.
    Justice Schettino's concurring opinion in In Re A. and B., supra, makes quite clear the realistic difficulties present when a municipal official-lawyer represents a developer in a matter not directly affecting the municipality such as in the mere purchase of the land where municipal action concerning the land's use is obviously indicated. In the learned Justice's words:
            A land and building development has widespread ramifications in a municipality, not the least of which are the required dealings with the various municipal agencies and departments. Even though the municipal attorney may not actively represent the developer in matters affecting the municipality (as respondents here claim), other municipal officials and employees will of necessity know of the representation. Such a situation probably results in a Pandora's box of psychological and legal entanglements involving other public officials as well as the municipal attorney.

        See also this Committee's Opinion 8, 86 N.J.L.J. 718 (1963).

    It is the opinion of this Committee that the representation by the magistrate-attorney as set forth in the foregoing inquiries would for all practical purposes violate the Canons of Professional Ethics, Canon 6.
        Our inquirer also asks:
        3.    What is the definition of a developer as applied in this decision?

            a.    Can it be construed to apply to a builder who purchases one lot upon which he intends to build a house for resale?

    It is not within this Committee's province to define the terms used in the Supreme Court's decisions. The pertinent test or consideration here is not the number of houses the developer is going to build, but the probability approximating a certainty that the contemplated use of the land, whether for 100 houses or only one house, will require action by the municipality's zoning board, planning board or other municipal agency or officer.
        4.    Can a magistrate represent a client with regard to a completed commercial project (preparation of leases, eviction of tenants, etc.) while the developer of that project is engaged in processing another development in the same municipality through another attorney?

    It is generally accepted by the bench and bar "that it is the duty of any attorney in public employ to be and remain above all suspicion, even at personal financial sacrifice." In the light of our Supreme Court's views expressed in In re A. and B., supra, it is our opinion that the known representation of a developer by a judicial officer of a municipality where it is clear that the developer will seek favorable consideration from other agencies of the municipality, even though with the aid of other counsel, brings the matter within the proscription of the spirit, if not the letter, of the Canons. Mr. Drinker has well expressed the consideration applicable here in the opening passages of Legal Ethics (1953):
NOBLESSE OBLIGE

            In America, where the stability of the courts and of all departments of government rests upon the approval of the people, it is peculiarly essential that the system for establishing and dispensing justice be ... so maintained that the public shall have absolute confidence in the integrity and impartiality of its administration... . It cannot be so maintained unless the conduct and motives of our profession are such as to merit the approval of all just men.

        Thus begins the Preamble to the Canons.

            What must be the "conduct and motives of our profession" in order that they shall "merit the approval of all just men?"

            As the second paragraph of the Preamble points out, the Canons do not purport to particularize - merely to be a general guide. Since the adoption of the original thirty-two Canons in 1908 new problems and changed conditions have required and in the future will require additions, amendments, and clarification, but the basic standards of professional conduct which they embody have never been materially relaxed or the essential provisions altered; nor need they be. A lawyer who studies them thoughtfully and who wholeheartedly respects and abides by their substance and spirit will suffer no serious lapse in ethical conduct or motives.

            But it is not enough for the lawyer to comply literally with the Canons and openly advocate their observance in order that his professional career shall merit the approval of all just men.

            The lawyer must not only be honest and upright, but must be believed to be so by clients, court, colleagues, and by his fellow citizens.

    It is our opinion that the representation by the magistrate as described in the above query would violate Canon 6 and the spirit of the Canons generally.
* * *

This archive is a service of Rutgers University School of Law - Camden