98 N.J.L.J. 27
January 9, 1975
Corporate Appearance Before Zoning Board of
Adjustment Other than Through an Attorney
An inquiry has been made to the Committee on the Unauthorized Practice of Law appointed by the Supreme Court of New Jersey, relative to the permissibility of a corporation appearing on an application before a Zoning Board of Adjustment, seeking relief under N.J.S.A. 40:45-39, solely by its architect, engineer or other representative official of the corporation, none of whom is an attorney.
The facts involved in this inquiry concern an application by a corporation, seeking to modify an existing special use exception which was previously granted by the municipality after recommendation by the Board of Adjustment.
The Constitution of the State of New Jersey provides that admission to the practice of law and discipline of persons so admitted are vested exclusively in the Supreme Court. Const. 1947, Art. VI, Sect. II, par. 3.
The New Jersey Supreme Court has promulgated certain rules governing the practice of law.
R. 1:21-1(a) sets the qualifications and provides that no person shall practice law in this State unless he is an attorney, holding a plenary license to practice in this State, etc. There are certain exceptions. "A person shall be permitted to appear and prosecute or defend an action in any Court of this State if he (1) is a real party in interest to the action or the guardian of the party; or (2) has been permitted to speak pro hac vice pursuant to R. 1:21-2; or (3) is an attorney holding a certificate of limited admission, a law clerk or a law student or law graduate practicing within the limits of R. 1:21-3."
Paragraph (b) of said Rule provides that all attorneys and pro se parties appearing in any action shall be under the control of the Court in which they appear and subject to appropriate disciplinary action.
Paragraph (c) of said Rule expressly prohibits the practice of law by a corporation, as follows:
(c) Prohibition on Corporation. Except as otherwise provided by R. 1:21-1A (professional corporations) and by R. 6:11 (appearances in small claims division) and by R. 7:7-4 (municipal court violations bureau), a corporation shall not practice law in this State, nor shall it appear nor file any paper in any action in any court of this State except through an attorney authorized to practice in this State. The fact that an officer, trustee, director, agent or employee of a corporation shall be an attorney authorized to practice in this State shall not be held to entitle such individual or corporation to do any act prohibited by these rules.
This Committee's attention has been drawn to N.J.S.A. 40:55- 44, concerning hearing upon an appeal before a Zoning Board of Adjustment, and particularly the last sentence thereof which reads, "Upon the hearing any party may appear in person or by agent or by attorney." Does this provision exempt a corporation from the prohibition against the corporate practice of law under R. 1:21- 1(c)? We think not. No statute can control the judicial department in the performance of its duty to decide who shall enjoy the privilege of practicing law. Moreover, our Courts have held that while the Legislature may adopt a statute which penalizes the unlawful practice of law (N.J.S.A. 2A:170-78), it may not constitutionally authorize the practice of law by anyone not duly admitted to the bar by the Supreme Court. See New Jersey State Bar Ass'n v. Northern New Jersey Mortgage Associates, 55 N.J. Super. 230, affirmed in part and reversed by the Supreme Court in 32 N.J. 430 (1956).
Accordingly, if the quoted line of N.J.S.A. 40:55-44 were to be interpreted to afford the privilege to a corporation to appear before a Zoning Board of Adjustment solely by its architect, engineer or other representative official of the corporation as its agent, to present its case, the same would contravene the provisions of R. 1:21-1(c), quoted above.
We conclude that an appearance before a Board of Adjustment, a quasi-judicial body, on an application for a variance or special exception under N.J.S.A. 40:55-39, constitutes the practice of law. The practice of law is limited to persons admitted to practice by the Supreme Court of the State of New Jersey, who are subject to the Court's rules of procedure and discipline. Representation of corporations by architects, engineers or its representative officials constitutes the unauthorized practice of law.
It is to be noted that despite certain expertise and proficiency in presenting a case before a Zoning Board of Adjustment in behalf of their corporate client, the legal knowledge and skill required in presenting evidence, examination and cross- examination of witnesses, qualifying expert witnesses, understanding the admission and exclusion of evidence, construction and application of statutes, ordinances and court decisions - all of which are involved in such proceeding and where the legal rights of the parties are determined just as effectively as in the trial court and whose decisions are subject to review on appeal on the record made before the Board of Adjustment at the hearing - is usually lacking in such otherwise qualified professionals.
The public interest requires that representation before a Board of Adjustment, unless by an individual pro se, be by attorneys skilled in these arts.