May a municipal planning board's attorney represent his own wife to oppose a neighbor's zoning variance before the board of adjustment?

Plain-English summary

The inquirer was the attorney for the planning board of the municipality in which he lived, in a house owned by his wife. The owner of adjoining vacant land wanted to build an apartment house, which would require a variance from the zoning ordinance and a proceeding before the zoning board of adjustment. He asked (a) whether he could represent himself at the hearing, as a resident with an interest in seeing ordinances enforced and a "legal and equitable interest" in his wife's property, and (b) whether he could represent his wife at the hearing.

On inquiry (a), the Committee said this presented a legal question, not an ethics one: on the stated facts no ordinance was being violated, and even if one were, enforcement would be for the appropriate local authorities and would presumably not require the inquirer's assistance.

On inquiry (b), the Committee was of the opinion that he should not represent his wife. Citing its Opinion 67, it noted that planning boards, boards of adjustment, and governing bodies are not always in accord on variances, and that if the board of adjustment granted a variance the matter might be referred back to the planning board, in which case the inquirer would have an obvious conflict of interest; a required subdivision would likewise need planning board approval under N.J.S.A. 40:55-1.24. The Committee added that the inquirer apparently intended to be a witness, which under Canon 19 meant he should leave the trial of the case to other counsel except as to merely formal matters, and that, given the husband-wife relationship, Drinker's observation about the inadvisability of representing a member of one's immediate family was apposite.

Currency note

This opinion was issued in June 1967, before New Jersey's September 13, 1971 adoption of the Disciplinary Rules (Code of Professional Responsibility), and well before the 1984 Rules of Professional Conduct and all later revisions. It applied Canon 19 (a lawyer who is a witness should leave the trial to other counsel) and the conflict-of-interest principle of its Opinion 67. These subjects are now treated under RPC 1.7 (concurrent conflicts) and RPC 3.7 (lawyer as witness). Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific requirement mentioned here.

Common questions

Q: Could the planning board attorney represent his wife at the variance hearing?

A: No. The Committee said he should not, because a granted variance could be referred back to his planning board (an obvious conflict) and because he intended to be a witness, which Canon 19 barred.

Q: Could he at least appear for himself as a resident?

A: The Committee treated that as a legal question, not an ethics one, noting that on the facts no ordinance was being violated and enforcement would be for the local authorities, not the inquirer.

Q: Why did being a witness matter?

A: Under Canon 19, a lawyer who is a witness for a client, except as to merely formal matters, should leave the trial of the case to other counsel.

Background and rules framework

The opinion combines two threads of the Canons of Professional Ethics: the conflict-of-interest limits on a municipal board attorney (as developed in the Committee's Opinion 67) and Canon 19's bar on a lawyer trying a case in which he is a witness. In current New Jersey terms, these map to RPC 1.7 (concurrent conflicts of interest) and RPC 3.7 (lawyer as witness).

Citations and references

Statutes:

• N.J.S.A. 40:55-1.24: planning board approval of subdivisions

Other authorities:

• Canons of Professional Ethics, Canon 19 (lawyer as witness)
• Drinker, Legal Ethics 110 (1953): the inadvisability of representing a member of one's immediate family

Other opinions cited:

• NJ ACPE Opinion 67, 88 N.J.L.J. 81 (1965): conflict of interest where municipal bodies may disagree on a variance

See also

• NJ ACPE Op. 117: Borough Attorney Advising the Planning Board
• NJ ACPE Op. 169: Planning Board Attorney Partner of Mayor's Father

Source

• Landing page: https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp112-1.html

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

90 N.J.L.J. 365
June 1, 1967

OPINION 112

Planning Board Attorney
Personal Interest - Witness

The inquirer is the attorney for the planning board of the municipality in which he lives. The house in which he resides is owned by his wife. Adjoining that property is vacant land upon which the owner desires to erect an apartment house. That property, not being zoned for such construction, will require a variance from the provisions of the local zoning ordinance and, hence, a proceeding before the zoning board of adjustment.

The inquirer asks (a) whether he can represent himself at the hearing, pointing out that he is a resident of the municipality and as such has a right to see that all ordinances are properly enforced, that he is opposed to having an apartment house built next door to his house, and that he has "a legal and equitable interest" in the property of his wife which entitles him to appear before the board of adjustment to defend such interest; and (b) whether he can represent his wife at the hearing before the board of adjustment.

Inquiry (a) does not present an ethics problem, but rather a legal one. There is no ordinance being violated so far as the stated facts disclose and, even if there were, this would be a matter of enforcement by the appropriate local authorities, which presumably would not require the assistance of the inquirer.

As to inquiry (b), concerning the representation of his wife, who, of course, does have the legal title and could validly object to the variance, we are of the opinion that he should not undertake such representation. As we said in Opinion 67, 88 N.J.L.J. 81 (1965), our law reports are replete with cases where planning boards, boards of adjustment and governing bodies have not always been in accord on requests for variances. In this case, if the board of adjustment granted a variance, the matter might be referred back to the planning board for action, in which case the inquirer obviously would have a conflict of interest. Or, if a subdivision were required, planning board approval would have to be obtained under N.J.S.A. 40:55-1.24.

There is the further problem that the inquirer apparently intends to be a witness in this case and, hence, would be precluded under Canons of Professional Ethics, Canon 19, which states that when a lawyer is a witness for a client, except as to merely formal matters, he should leave the trial of the case to other counsel. We also believe that, in view of the husband-wife relationship here, the following quotation from Drinker, Legal Ethics, 110, (1953), is apposite:

There is also a grave question as to the wisdom of representing a member of one's immediate family or an intimate friend in matters vitally affecting them. It is usually wiser to have an outside attorney and consult with him.