93 N.J.L.J. 469
June 25, 1970
Conflict of Interest
Zoning Board Attorney
Partner Representing Appealing Applicant
An attorney for a municipal zoning board of adjustment
inquires whether he may continue to represent the zoning board in
an appeal from the denial of the grant of a variance where the
appellant is a principal of a business entity which is represented
by an office partner of the attorney. The attorney states that an
application was made to the board of adjustment by a business
entity known as "T & R Development Company." The board of
adjustment which he represents denied the variance request and the
applicant appealed that decision to the Law Division.
Some six months prior to the denial, the applicant retained one of the inquirer's partners to represent him in connection with a subdivision application and property transfer in a neighboring county, said transaction being totally unrelated to the variance application. The attorney states that subsequent to the denial of
the variance application he learned that his partner's client was one of the principals involved in the variance application. He is now representing the board of adjustment in defense of the denial and requests our opinion as to whether such representation would constitute a violation of the Canons of Professional Ethics, Canon 6.
guidelines for decision in such cases as follows:
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.... The fact of
such dual representation itself is contrary to
the public interest. In the Matter of A. and
B. Attorneys-at-Law, 44 N.J. 331 (1965); see
also In re Kamp, 40 N.J. 588 (1963).
The inquirer suggests that the situation could not be interpreted as a conflict of interest, "simply because the two matters are completely separate and distinct from each other." But such an observation is inappropriate with respect to transactions where one of the parties is a public agency. In such circumstances, the public interest is involved and an attorney may not represent conflicting interests even with the consent of all concerned after full disclosure. Drinker, Legal Ethics 120 (1953); Chief Justice
Weintraub in "Notice to the Bar," 86 N.J.L.J. 713 (1963); Ahto v. Weaver, 39 N.J. 418, 431 (1963); N.J. Advisory Committee on Professional Ethics, Opinion 100, 89 N.J.L.J. 696 (1966).
The Committee therefore finds it unethical for the attorney to continue to represent the board of adjustment in a matter in which his firm is at the same time representing one of the principals of the applicant.