Link to original WordPerfect Document

                                             99 N.J.L.J. 588
                                            July 1, 1976


Appointed by the New Jersey Supreme Court


Municipal Attorney Reviewing
Deeds Required by Planning Board

    The inquirer is a township municipal attorney. The township's administrative code provides for the general administrative organization of the township government and states that among his duties the township attorney "shall prepare or approve all legal instruments relating to the business of the township."
    The township has a planning board which does not have an attorney and which, the inquirer states, he does not represent. It is common for the planning board to condition some of its actions (such as the granting of a subdivision approval) upon the delivery of a deed to the township conveying land or an easement in land for road widening, utility or similar purposes. The township manager, upon receiving either drafts of the instruments or the executed instruments, refers them to the attorney for approval prior to acceptance by the township. The data submitted to this Committee indicate that the township attorney also prepared and revised deeds of easement to the township which were required from a developer by planning board action. The attorney charged the township for these services and was paid by it.
    The township has a land subdivision ordinance which provides in part that all costs and expenses connected with an application for approval of a subdivision shall be charged to the developer in accordance with a fee schedule which, as to legal services, provides that the "developer shall be charged an amount equal to
all expenditures made by the township for legal services rendered to the township in relation to an application for approval of a plan of subdivision." The township after payment of the attorney's bills for services requires reimbursement from the developer under the terms of the fee schedule.
    A developer has challenged the township's practice of seeking reimbursement for the attorney's fee on the basis that under our Opinion 117, 90 N.J.L.J. 745 (1967), the township attorney may not represent both the township and the planning board. The inquiry is whether a municipal attorney may ethically review deeds and drafts of proposed deeds to the municipality required by the planning board and submitted by developers for approval and acceptance by the municipality and, if so, may he advise municipal administrative officers regretting them.
    We have considered the potential danger of conflict of interest arising when the same attorney represents distinct but independent municipal agencies, which practice has been criticized by the Supreme Court in Schear v. Elizabeth, 41 N.J. 321 (1964). See our Opinions 127, 91 N.J.L.J. 262 (1968); 149, 92 N.J.L.J. 185
(1969); 164, 92 N.J.L.J. 831 (1969), as modified by 199, 94 N.J.L.J. 225 (1971). We reiterate what has been our consistent position. A municipal attorney cannot serve as attorney for any other board or agency of the same municipality if there is or may be a conflict of interest in a particular situation. See Opinions 67, 88 N.J.L.J. 81 (1965), and 117, supra.
    The review, revision or preparation by the municipal attorney of a deed of easement to the municipality which a developer is required by the municipal planning board to execute and deliver incident to subdivision approval is not unethical. The attorney in such a case is properly representing the municipality which is entitled to have its interests properly protected. We see no conflict in this matter. The propriety of the municipality's requiring the developer to reimburse it for the municipal attorney's fees incident to the performance of his services involves a matter of law as to which we express no opinion.

* * *

NOTE: We call the attention of the Bar to the Municipal Land Use Law, L. 1975, c. 291, N.J.S.A. 40:55D-1 et seq., and in particular to 40:55D-24 and 40:55D-71, which after the effective date (August 1, 1976) prohibit the employment of a municipal attorney as attorney for the planning board or the board of adjustment.

This archive is a service of Rutgers University School of Law - Camden