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                                             88 N.J.L.J. 161
                                            March 18, 1965


Appointed by the New Jersey Supreme Court


Member of Governing Body Before Local Agencies

    This inquiry deals with the firm of which one partner is a member of the local governing body; and it is divided into three questions:
    1.    Is it proper for a law firm to represent clients before the board of adjustment, planning board or governing body of a municipality, where a member of the firm is a member of such governing body?
        (a)    Where such firm appears before the governing body, is it sufficient compliance with professional ethics for the member of such body to disclose to that body his relationship to the applicant's attorney and then to abstain from discussion and voting by absenting himself from the proceedings?
        (b)    May the lawyer-member of the governing body thereafter personally represent those clients of his firm (who formerly had matters before the governing body) in respect to leasing, financing, developing or selling the property concerned in the proceeding before the governing body?

    2.    Where a client has a proceeding pending before a governing body or its agency, and the attorney-member of the governing body abstains from participating in the decision affecting such person, may the firm of that attorney represent such person during proceedings in matters having no relation to the proceedings before the governing body or its agency (e.g., matters wherein local agency approval is not required and matters in other municipalities)?
        (a)    Where a person prior to retainer has been before the governing body or an agency of a municipality and after that matter is concluded, seeks to retain a firm of which one attorney is a member of the governing body of that municipality, may that firm thereafter represent such person in matters having no relation to the proceeding such person had before the local agency?
    3.    Is it proper for an attorney who is a member of a governing body to represent a client in matters dealing with the exercise of ministerial or administrative acts by officers or agents of that municipality, e.g, applications for licenses or permits?
    This Committee's jurisdiction is not concerned with the conduct of a public official, as such; but where that official is an attorney, his behavior is nevertheless subject to the ethical standards of his profession, even though there be no attorney- client relationship concerned. In re Genser, 15 N.J. 600, 606, (1954), 7 C.J.S.,sec. 24, Nonprofessional Misconduct, p. 762. In the subject inquiry there is an attorney-member of a governing body engaged on behalf of the public in the pursuit of legislative and
administrative duties on behalf of the public. Though not an attorney-client relationship, there is a fiduciary relationship to the public.Cf. R.1:26-3(d), prohibiting an attorney-member of a governing body from practicing in the municipal court of that municipality. Thus, the problem of conflicting interests is present even though the attorney has no function as an attorney for the governing body before which a client of his firm appears.
    The answer to question 1 is clearly in the negative. The proposed disqualification and abstention from discussion and voting in 1 (a) do not avoid the question. See this Committee's Opinions 15, 86 N.J.L.J. 734 (1963); 22, 87 N.J.L.J. 13 (1964); 24, 87 N.J.L.J. 19 (1964); and 37, 87 N.J.L.J. 190 (1964).
    Question 1 (b) concerns the propriety of an attorney representing private parties following the conclusion of such clients' proceedings before the governing body of which he is a member. An attorney serving on a public body must be particularly scrupulous to see to it that there is no reason for the public to suspect improprieties in his professional activities.
    The facts in question 1(b) invite the suspicion that the private employment in matters subsequent to public proceedings was a reward for the attorney's earlier favorable vote or influence.
    Lawyers are encouraged to serve on public bodies. See our Opinion 28, 87 N.J.L.J. 106 (1964). Such public service is a tradition that is particularly honored in the State of New Jersey.
    Experience shows that some developers deem it practical to arrange for the employment of attorneys who are members of public bodies whose aid may be needed in the preliminary work of their developments. Even if there were no contact between the client and the attorney prior to the participation of the attorney in the deliberations of the public body, his later employment by the successful developer can only lead to a breakdown in respect for the public official, for the bar and for the rule of law. The answer to question 1 (b) is in the negative.
    Question 2 differs from 1 in that the subject of the client's retainer deals with matters wherein no local official approval or action was required. As so stated, the representation by the attorney is not objectionable.
    It is the opinion of this Committee that the conduct described in question 2 (a) exhibits no improprieties. However, the Committee cautions that an attorney who is a member of a governing body or local board should exercise self-restraint in accepting employment even on matters unrelated to proceedings had before him where the client in fact did present a question to such public body for its action and he participated in the vote. A regular course of accepting professional employment from persons who appear or have appeared before a public body in which the attorney participates can only lead to suspicion and the appearance of impropriety however remote the subject matter of the employment may be from the subject matter of the proceeding before the public body.
    Question 3 concerns the possible influence of the attorney-member of the governing body on the ministerial and administrative acts of the employees of the municipality. Attorney-
members of governing bodies should exercise care in their professional contacts with municipal employees. The use of influence as a member of the public body to which the employee is responsible offends Canons of Professional Ethics, Canon 26, which proscribes: "... means other than those addressed to the reason and understanding, to influence action." In the opinion of this Committee, the conduct in question 3 is improper.

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