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                                         105 N.J.L.J. 177
                                        February 28, 1980


Appointed by the New Jersey Supreme Court


Conflict of Interest
Planning Board Attorney - Resigned to
Represent Senior Housing Corporation
before Board - Then Reappointed Board Attorney

    An attorney was appointed to the position of borough planning board attorney. Sometime thereafter, while still occupying the position of planning board counsel he became involved with a group of residents seeking to construct a large, nonprofit housing project for senior citizens. For a period of time he represented both the planning board and the senior citizens group. Since the municipality was preparing a new master plan and development regulations during this time, the planning board had to consider senior citizens housing and make recommendations pertaining thereto to the mayor and council. The attorney, however, disqualified himself from advising the planning board on any matters directly affecting the senior citizens project. When the Senior Citizens Housing Corp. was ready to submit its application for a subdivision and site plan approval for the project, the attorney resigned his position as planning board attorney and proceeded to represent the Senior Citizens Housing Corp. before the planning board. All necessary approvals were expeditiously obtained and a developer's agreement was negotiated between the Housing Corporation and the governing body by the attorney on behalf of the senior citizens and by the borough attorney. Shortly after the execution of the developer's agreement, the attorney's replacement in the planning board position resigned and the senior citizens' attorney succeeded in being reappointed as the planning board attorney after an absence from the position of about six months. Several days after his reappointment, the attorney had occasion to correspond with the mayor and council concerning the proposed housing project. Because he wrote to the Council as the attorney for the Senior Citizens Housing Corp. at the time when he was also planning board attorney, the borough manager and several member of the Council expressed a concern over the propriety of the attorney's conduct in the matter.
    Inquirer asks whether the recent reappointment of the attorney as planning board attorney was proper since vouchers for professional services of the attorney must be signed by members of the governing body, two of whom serve as members of the planning board. He also asks what the effect of this appointment might be upon the future relationship between the Senior Citizens Housing Corp. and the borough.
    It is clear that the attorney may not represent the senior citizens group while he is in office as the planning board attorney. DR 9-101(B), DR 5-105(A) and (B). We have also held that while he represents a senior citizens housing association created by the municipality, he may not appear for other clients before municipal bodies. Opinion 281, 97 N.J.L.J. 362 (1974). In that opinion we said: Counsel in these cases must make a choice as to whether they desire to represent the autonomous agency and thus preclude the practice by themselves and members of their firms before the various town bodies or whether they believe it to be more to their advantage to decline representation of the agency and represent private clients before the various municipal bodies. See also Opinion 388, 101 N.J.L.J. 120 (1978), Ahto v. Weaver, 39 N.J. 418 (1963), cited in Schear v. Elizabeth, 41 N.J. 321 (1964). In the case before us the attorney has attempted to avoid this stricture by resigning as planning board attorney to represent the Housing Corporation substantially to the completion of its application and then returning to representation of the planning board. We express no opinion on the question of whether the reappointment of the attorney as planning board attorney in the circumstances described is proper since this is a question of law. We strongly disapprove, however, of the practice of representation of a public body followed by the attorney resigning for the purpose of representing a private client with a subsequent return portly thereafter to representation of the public body. Under the best of circumstances the public is disserved by such a practice.

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