93 N.J.L.J. 241
April 9, 1970
Conflict of Interests
Board of Adjustment Attorney
Part-time Associate of Municipal Attorney
Our attention has been called to an inquiry by an attorney who
advises us that while he maintains his own office in the county
seat of the county where he has been engaged in the general
practice of law for over forty years, during the past twenty years
he has also been associated with an attorney in an adjacent county
on a part-time basis. He says that the services which he renders are generally, but not always, conducted from his own office.
The attorney for whom he has rendered services in the adjacent county is the municipal attorney of his municipality and has been for very many years. The board of adjustment of that municipality has no designated attorney and when the occasion has heretofore arisen it engaged special counsel. We are now told that a suit has been instituted against that municipality and its board of adjustment, also joining as defendant the municipal building inspector. We are told that by referring to the bill of complaint filed in that litigation, we should notice that the defendants are not in conflict but are, as he says, consistent with each other. We
are further told that because of the time element involved, the municipal attorney has filed an answer and a cross-claim on behalf of the municipality and the building inspector. The inquirer, however, advises us that he desires to appear as attorney of record for the board of adjustment and further states that he will be the person actively in charge of the litigation for and on behalf of the municipal attorney and the building inspector, as well as for the board of adjustment, and he seeks advice as to whether there is a conflict of interests by reason of the foregoing facts.
A disclosure of the facts surrounding this inquiry would indicate that the general public and most of the lawyers in the vicinity are of the opinion that these two lawyers are, in fact, associated with each other in the practice of law. The stationery upon which the inquiry came to the Committee likewise lists both names on the letterhead.
We have previously stated that it would not be desirable for the attorney for the board of adjustment to also be the municipal attorney. To a certain extent we discussed this matter in our Opinion 91, 89 N.J.L.J. 248 (1966), because in that inquiry the question was whether a zoning board attorney was permitted to take certain action which normally was required of the municipal attorney.
We concluded in that opinion that under the facts, the applicant should not act as attorney for the board of adjustment.
The Legislature of this State, being of the opinion the board of adjustment ought to have the right to appoint its own attorney, rather than be confronted with a problem as is here presented, enacted a recent statute which provides that the board of adjustment may appoint its own attorney other than the municipal attorney. See P.L. 1965, c. 2156 (N.J.S.A. 40:55-36.1 et seq.).
We are mindful that in our Opinion 91, supra, we also stated that the problem as to whether there is incompatibility between the
offices of board of adjustment attorney and municipal attorney was a matter of law and that such determination could only be made by our courts and not by this Committee. For that reason we then expressed no opinion on the subject.
The facts in this inquiry are not only predicated upon different circumstances, but these are two separate and distinct positions. In the particular case before us we must come to the conclusion that the inquirer and the municipal attorney are associated indirectly, if not directly, in the practice of law. Apparently everyone in the community is familiar with that fact and the attorneys' stationery gives further evidence of it. In the litigation it could be that some part of the subject matter might be directed against the municipality and not the board of adjustment or vice versa. Many zoning opinions in the courts have been decided in that matter.
In our Opinion 164, 92 N.J.L.J. 831 (1969), we referred to decisions of our Supreme Court criticizing the representation of more than one agency in the same municipality because of the potential danger of conflict inherent in such representation. See Schear v. Elizabeth, 41 N.J. 321 (1954); Dolan v. DeCapua, 16 N.J. 599 (1954); Wilson v. Long Branch, 27 N.J. 360 (1958).