90 N.J.L.J. 365
June 1, 1967
Planning Board Attorney
Personal Interest - Witness
The inquirer is the attorney for the planning board of the
municipality in which he lives. The house in which he resides is
owned by his wife. Adjoining that property is vacant land upon
which the owner desires to erect an apartment house. That property,
not being zoned for such construction, will require a variance from
the provisions of the local zoning ordinance and, hence, a proceeding before the zoning board of adjustment.
The inquirer asks (a) whether he can represent himself at the hearing, pointing out that he is a resident of the municipality and as such has a right to see that all ordinances are properly enforced, that he is opposed to having an apartment house built next door to his house, and that he has "a legal and equitable interest" in the property of his wife which entitles him to appear before the board of adjustment to defend such interest; and (b) whether he can represent his wife at the hearing before the board of adjustment.
Inquiry (a) does not present an ethics problem, but rather a legal one. There is no ordinance being violated so far as the stated facts disclose and, even if there were, this would be a matter of enforcement by the appropriate local authorities, which presumably would not require the assistance of the inquirer.
As to inquiry (b), concerning the representation of his wife, who, of course, does have the legal title and could validly object to the variance, we are of the opinion that he should not undertake such representation. As we said in Opinion 67, 88 N.J.L.J. 81 (1965), our law reports are replete with cases where planning boards, boards of adjustment and governing bodies have not always been in accord on requests for variances. In this case, if the board of adjustment granted a variance, the matter might be referred back to the planning board for action, in which case the inquirer obviously would have a conflict of interest. Or, if a subdivision were required, planning board approval would have to be obtained under N.J.S.A. 40:55-1.24.
There is the further problem that the inquirer apparently intends to be a witness in this case and, hence, would be precluded under Canons of Professional Ethics, Canon 19, which states that when a lawyer is a witness for a client, except as to merely formal matters, he should leave the trial of the case to other counsel. We also believe that, in view of the husband-wife relationship here, the following quotation from Drinker, Legal Ethics, 110, (1953), is apposite:
There is also a grave question as to the wisdom of representing a member of one's immediate family or an intimate friend in matters vitally affecting them. It is usually wiser to have an outside attorney and consult with him.