Can a lawyer who serves a city's redevelopment agency, forecloses its tax sale certificates, or sits on its sewer authority also appear before city bodies for private clients?

Plain-English summary

The Committee answered three questions about lawyers connected to a city.

Attorney A was engaged by a municipal redevelopment agency under N.J.S.A. 40:55C-1 et seq., received an annual retainer, and closed titles for the agency. Because the statute lets the agency's commissioners (appointed by the governing body) employ counsel or call on the municipality's chief law officer, and the municipality appropriates the agency's funds, the Committee concluded the agency is an adjunct of the municipality and its attorney is part of municipal government. Attorney A therefore could not appear before the municipal council or board of adjustment for a private client (Opinions 18, 19, 20). The Committee added that when A, after being told of the conflict, purported to address the council "as a private citizen" to present his client's cause, that was a palpable subterfuge and improper, even though A had every right to appear as a private citizen on his own behalf.

Attorney B was engaged to foreclose tax sale certificates for a fee on a case basis and performed no other city services. The Committee held, following Opinion 65, that such employment precluded representing private clients before the municipal governing body or its agencies while B is representing the municipality in foreclosure proceedings or is regularly or recurrently so retained.

Attorney C was a member of the city sewer authority, appointed by the municipal council (whether or not he was paid was unimportant). Following Opinions 52 and 64 on parking authorities, the Committee held that C may not appear before the municipal council or any of its agencies while he is a member of the sewer authority.

Currency note

This opinion was issued in February 1968, 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 the Canons of Professional Ethics through the Committee's line of municipal-conflict opinions. These conflicts are now analyzed under RPC 1.7 and, for government lawyers, RPC 1.11. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific requirement mentioned here.

Common questions

Q: Can a redevelopment-agency lawyer appear before city bodies for private clients?

A: No. The Committee held the agency is an adjunct of the municipality, so its attorney is part of municipal government and may not appear before the council or board of adjustment for private clients.

Q: Does appearing "as a private citizen" get around the conflict?

A: Not as a subterfuge. The Committee said the lawyer may appear as a private citizen on his own behalf, but shifting to that posture to press a client's cause after being told of the conflict was improper.

Q: Does the rule reach a lawyer who only forecloses the city's tax certificates or sits on its sewer authority?

A: Yes. The Committee held the tax-foreclosure attorney (while so retained) and a sewer-authority member may not appear before the municipal council or its agencies for private clients.

Background and rules framework

The opinion applies the Committee's settled rule that a lawyer tied to a municipal body, by retainer, recurrent engagement, or membership, may not appear before that municipality's council or agencies for private clients, drawing on Opinions 18-20, 52, 64, and 65. In current New Jersey terms, the analysis falls under RPC 1.7 and, for government lawyers, RPC 1.11.

Citations and references

Statutes:

• N.J.S.A. 40:55C-1 et seq. (municipal redevelopment agencies)

Other opinions cited:

• NJ ACPE Opinions 18, 19, 20, 86 N.J.L.J. 734 (1963)
• NJ ACPE Opinion 52, 87 N.J.L.J. 610 (1964); Opinion 64, 87 N.J.L.J. 801 (1964): parking-authority attorneys and members may not appear before municipal bodies
• NJ ACPE Opinion 65, 87 N.J.L.J. 810 (1964): tax-sale-foreclosure attorney barred from representing private clients before municipal bodies

See also

• NJ ACPE Op. 141: Health Board Attorney Conflicts
• NJ ACPE Op. 127: One Attorney for Both Zoning and Planning Boards

Source

• Landing page: https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp123-1.html

Original opinion text

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

91 N.J.L.J. 97
February 15, 1968

OPINION 123

City Redevelopment Agency Attorney; Tax Sale Foreclosure Attorney; City Sewer Authority Attorney

The inquirer poses three questions:

1. Attorney A is engaged by a Redevelopment Agency appointed by a municipality under the provisions of N.J.S.A. 40:55C-1 et seq. For this, he receives an annual retainer payable in installments. He also closes titles for the agency when it acquires properties. He also is a member of the public library board of the city, but the latter factor has not entered into the decision we have made.

The statute, which permits the creation of redevelopment agencies by municipalities, provides in section 6 that it shall be conducted by five commissioners appointed by the governing body of the municipality and, in section 7, that the commissioners comprising the agency shall have the right to employ their own counsel or to call upon the chief law officer of the municipality for its legal services.

Thus, it is clear that the governing body of the municipality controls the redevelopment agency, in the sense that it appoints its members. And, since the redevelopment agency is an adjunct of the municipality, its attorney, obviously, must be considered a part of the municipal government. Section 11 of the statute provides that the municipality shall appropriate funds for the operation of the agency, although any bonds issued by it are not, under section 13, the obligation of the municipality.

The inquiry posed is whether Attorney A, under such circumstances, may appear before the municipal counsel or board of adjustment on behalf of a private client. We conclude that he may not. See our Opinions 18, 19 and 20, 86 N.J.L.J. 734 (1963). Attorney A appeared before the municipal council with respect to the adoption of a proposed ordinance affecting a client. The presiding officer objected to his appearance on the ground that there was a conflict of interest. Attorney A denied that there was such a conflict but then took the position that he had a right to address the municipal council as a private citizen and to be heard on the question. The presiding officer thereupon permitted him to be heard. Attorney A, of course, had the right to appear before the municipal council as a private citizen on any matter, but his palpable subterfuge in purporting to address the council as a private citizen, in order to present the cause of his client after the presiding officer had called his attention to the conflict of interest, was improper. It is obvious that he did not appear before the council initially as a private citizen but only shifted to that position when his standing to appear as an advocate on behalf of a client was questioned.

2. Attorney B is engaged by the same municipality to foreclose tax sale certificates, for which he is paid a fee on a case basis. He performs no other services for the city, and the inquiry raised is whether he may appear before any body or agency of the city on behalf of private clients. We dealt with the matter of an attorney foreclosing tax sale certificates in our Opinion 65, 87 N.J.L.J. 810 (1964), and said that such employment precluded his representing private clients before the municipal governing body or any of its agencies. This prohibition applies to Attorney B while he is representing the municipality in foreclosure proceedings or if he is regularly or recurrently so retained.

3. Attorney C is a member of the city sewer authority, which is appointed by the municipal council. It is not stated whether he receives remuneration, but that is unimportant. We held in Opinions 52, 87 N.J.L.J. 610 (1964), and 64, 87 N.J.L.J. 801 (1964), that attorneys for municipal parking authorities and members of these authorities could not appear before municipal bodies. We think the same rule applies to members of the city sewer authority, and for the same reason stated in those opinions. Attorney C, therefore, may not appear before the municipal council or any of its agencies while he is a member of the city sewer authority.