90 N.J.L.J. 745
November 16, 1967
Adviser to Planning Board
A municipal attorney has been asked by his borough's planning board to serve as its legal adviser in the preparation of a master plan. He inquires whether he may serve in this dual capacity with propriety and cites Schear v. Elizabeth, 41 N.J. 321 (1964), and this Committee's Opinion 67, 88 N.J.L.J. 81 (1965), as possibly, but not necessarily, proscribing such dual representation. Our Opinion 67 sets forth in general terms that a municipal attorney cannot serve as attorney for any board or agency of the same municipality if there is or may be a conflict of interest in a particular situation.
The inquirer states that the planning board in considering a master plan may submit recommendations for "amending zoning ordinances, increasing the powers of the Planning Board" and the "distribution of power between the planning Board and the governing body." Such items in the first instance involve matters of policy which are in the province of the public body, not the attorney. However, where the prospect of differences of opinion as to policy
between the planning board and governing body is not so remote as to be discounted, an attorney who attempts to serve both bodies may well find himself in an embarrassing position. Further, the recommendations along the lines anticipated by the inquirer may well raise legal questions to which the answers may vary depending on the policy and approach of the agency and the governing body because of the differences in their responsibilities and functions. Where legal opinions are basic, noncontroversial matters such as statutory or constitutional provisions pertaining to the powers and functions of the planning board are needed, the planning board might well be justified in seeking ad hoc assistance from the inquirer in his capacity as borough attorney. Obviously, if his legal services were requested regarding controversial issues the inquirer could not serve in a dual capacity.
We therefore conclude that the general principles proscribing dual capacities for municipal attorneys as stated in our Opinion 67 are applicable here.