89 N.J.L.J. 241
April 21, 1966
Municipal Attorney Representing Builder
An attorney serving as counsel to municipality A advises that
his department is responsible for the legal affairs of the city
with the exception of the board of education and the housing
authority, which he states are independently represented. He
further states that he has been representing a property owner in a
neighboring municipality B and was objecting in his behalf to a
variance granted there. The property owner sold his lands to a
limited partnership and the attorney was asked to represent the new
owner and continue in the proceeding. The principal of the
partnership is now constructing an office building in municipality
A. We assume that this is a substantial project with the likelihood
of transactions with municipality A. The attorney states that he
does not have any connection or association with that enterprise or
any other matter in connection with that client. The attorney asks
whether his continued representation of this client in municipality
B is proper.
It is our opinion that the continued representation would be improper under Canons of Professional Ethics, Canon 6. The Supreme
Court held in In re A.& B., 44 N.J. 331, 334 (l965):
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.
See also NJ. Advisory Committee on Professional Ethics, Opinion 85, 88 N.J.L.J. 631 (1965), and Opinion 69, 88 N.J.L.J. 97
The attorney further presents inquiries as to another matter where he has been representing a corporate developer and builder in a matter in municipality C and where one of the principals of that corporation is now involved in land developments in municipality A through other corporations and with other participants, but again apparently as one of the principals.
In questions involving the ethics of the profession, the responsibility and duty of the attorney are governed by the substance and not mere form. It is accordingly the opinion of the
Committee that the continued representation by the attorney in such circumstances would be improper.