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                                             89 N.J.L.J. 248
                                            April 21, 1966


Appointed by the New Jersey Supreme Court


Zoning Board Attorney
Representing Municipality

    The following inquiry has been submitted:

    X is attorney for a zoning board of adjustment. Y is counsel for the municipality. Under local zoning ordinances in certain circumstances, approval of the governing body is required where a variance has been granted. X has been requested to handle all appeals in zoning matters including those where the governing body is required to act. In some instances the governing body may reverse the action of the zoning board. X desires to know the propriety of representing the governing body (a) when it has affirmed the zoning board and (b) when it has reversed the zoning board.
    Where the governing body reverses the determination of the zoning board, can the attorney for the zoning board appear in the courts and challenge the conclusion of his original client? What position should the attorney adopt if the reviewing court remands the litigation to the zoning board? He would be sitting on different sides of the fence at different stages of the proceedings and it would be difficult for the public to understand how a zoning board attorney can shift his status from time to time.
    This subject is more fully discussed in our Opinion 53, 87 N.J.L.J. 610 (1964) and the citations therein, where we stated that the attorney could not change sides. Canons of Professional Ethics, Canon 6 would be violated and hence we feel that the zoning board attorney could not appear for the municipal body where there is a
reversal by the governing body.
    Where the zoning board and the governing body have arrived at the same conclusion, can the zoning board attorney appear on behalf of the municipality in subsequent court proceedings?
    A recent statute permits the board of adjustment of a municipality to appoint his own attorney other than the attorney for the municipality. P.L. 1965, c. 215 N.J.S.A. 40:55-36.1.
    The problem posed raises the question whether there is incompatibility between the two offices as a matter of law. Such determination can only be made by our courts and not by this Committee and hence we express no opinion on this subject.

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