88 N.J.L.J. 631
September 30, 1965
Magistrate's Representing Developer
A part-time municipal magistrate who is permitted to practice
law having been advised by the Supreme Court that the limitations
on the representation of clients set forth in In Re A. and B., 44
N.J. 331 (1965), apply to municipal magistrates as well as to
municipal attorneys presents the following inquiries:
1. May the Municipal Magistrate represent a builder in the municipality in the latter's purchase of land when
a. The land is subsequently to be subdivided and sold as individual homesites?
b. The land is to be retained by the builder and an apartment house or commercial buildings built thereon?
2. May a Magistrate represent an individual client with regard to the purchase of a piece of property and the mortgage financing thereon when the use to which the property will be put requires a variance or a subdivision, which latter two actions will be handled before the local planning board or board of adjustment by other counsel?
Our Supreme Court stated in In re A and B., supra:
Here, as we have said, we do not find the respondents represented the developers in the developers' dealings with the municipality. Although for this reason there is no literal violation of Canon 6, nonetheless that canon does not exhaust the ethical responsibility of the bar in this area. It is fundamental that no attorney who holds a public office should suffer anyone to attempt to gain an advantage by virtue of his official status, and hence it would be improper for an attorney so situated to accept a retainer if he is aware that the prospective client has that objective in mind.
We do not suggest that the members of the bar must receive a prospective client with unbecoming suspicion, nor of course do we suggest that an attorney for a municipality may not represent individuals or interests located therein merely because it may come to pass that the private client will have some transaction with the municipality.
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. We all know from practical experience that the very nature of the work of the developer involves a probability of some municipal action, such as zoning applications, land subdivisions, building permits, compliance with the building code, etc.
It is clear from the inquiries and further information supplied by the magistrate that the land purchase for which his service as a lawyer is sought definitely contemplates proceedings before other municipal bodies and therefore does not come within the permitted representation suggested by the court's language that "merely because it may come to pass that the private client will have some transaction with the municipality" such client's representation by an attorney-municipal official should not be barred. In the foregoing questions, it is certain that after the purchase of the land there will be applications to municipal agencies for favorable consideration of one sort or another.
Justice Schettino's concurring opinion in In Re A. and B., supra, makes quite clear the realistic difficulties present when a municipal official-lawyer represents a developer in a matter not directly affecting the municipality such as in the mere purchase of the land where municipal action concerning the land's use is obviously indicated. In the learned Justice's words:
A land and building development has widespread ramifications in a municipality, not the least of which are the required dealings with the various municipal agencies and departments. Even though the municipal attorney may not actively represent the developer in matters affecting the municipality (as respondents here claim), other municipal officials and employees will of necessity know of the representation. Such a situation probably results in a Pandora's box of psychological and legal entanglements involving other public officials as well as the municipal attorney.
See also this Committee's Opinion 8, 86 N.J.L.J. 718 (1963).
It is the opinion of this Committee that the representation by the magistrate-attorney as set forth in the foregoing inquiries would for all practical purposes violate the Canons of Professional Ethics, Canon 6.
Our inquirer also asks:
3. What is the definition of a developer as applied in this decision?
a. Can it be construed to apply to a builder who purchases one lot upon which he intends to build a house for resale?