88 N.J.L.J. 97
February 18, 1965
Fees from Developer
The question here posed for our consideration is best
presented in the following words of the inquirer:
A builder desires to develop a tract in a
municipality which will require extensive
planning, regulations, agreements,
specifications and other lengthy documentation
in connection with the development. He offers
to permit the municipal body or agency which
is concerned to do the particular legal work
through its own attorney or attorneys, and to
deposit such funds as may be required to cover
costs and fees with the municipality, against
which such costs and fees may be charged.
The attorney or attorneys, who are appointed annually by the municipality or agency, would at all times represent the municipality or agency and at no time represent the developer and would act under the direction and instruction of their respective municipal body or agency, conferring only with the developer at such times as their acceptance or disapproval of the proposal or other document may be required and in most cases, the conference would include the presence of the municipal body or agency employing them.
The answer to the question is governed by Canons of
Professional Ethics, Canon 6, which reads in part as follows:
It is unprofessional to represent
conflicting interests, except by express
consent of all concerned given after a full
disclosure of the facts. Within the meaning
of this canon, a lawyer represents conflicting
interests when, in behalf of one client, it is
his duty to contend for that which duty to
another client requires him to oppose.
That portion of Canon 6 permitting representation of conflicting interests by express consent after full disclosure is not available where, as here, the public interest is involved. N.J. Advisory Committee on Professional Ethics, Opinion 4, 86 N.J.L.J. 357, 361 (1963); Opinion 29, 87 N.J.L.J. 106 (1964); 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). Thus, we must determine if, in fact, a conflict of interest detrimental to the public would arise if a municipal attorney performed the legal work as here proposed.
Implicit in the proposal, is a desire by the builder to have the municipal attorney obtain for him municipal approval for the "extensive planning, regulations, agreement, specifications, and other lengthy documentation in connection with the proposed development." It would obviously be unethical for a municipal attorney to directly accept fees from such a developer and represent him as well as the municipality. Does the indirect payment of the fee by depositing it with the municipality change the proscribed conduct? We think not. And our view is not changed by the assertion that the attorney "would at all times represent the municipality ... and at no time represent the developer." The practicalities of the undertaking refute the words. It is, for example, difficult to see how a municipal attorney could apply for a subdivision approval, a building permit, or a zoning variance for the builder and be representing the municipality only. And it is equally difficult to understand how the municipal attorney could confer with "the developer at such times as their acceptance or disapproval of the proposal or other document may be required" without being in the position of advising the developer. To say the least, he would undoubtedly find it "his duty to contend for (the municipality) that which duty to (the developer) ... requires him to oppose."
The relationship between the municipality and the developer where the interpretation and enforcement of so many statutes, ordinances, rules and regulations are brought into play, is indeed a fertile field for conflicting interests, and when the public is involved the municipal attorney must avoid any semblance of divided
loyalty. The public image of the legal profession as a whole would be detrimentally affected if such a practice, as here proposed, were permitted. And this is so although the lawyer may be guided by the purest of altruistic intentions because it is the suspicion engendered in the mind of the public by such conduct that creates the mischief. See N.J. Advisory Committee on Professional Ethics, Opinion 8, 86 N.J.L.J. 718 (1963), and Opinion 54, 87 N.J.L.J. 689 (1964).
All that we have said concerning the municipal attorney and the municipality he represents applies with equal force to an attorney representing any municipal board, agency or other public body.
We conclude, therefore, that it would be unethical for the attorney for the municipal body or agency to perform the legal services under the facts here presented.