Can an attorney appear before local boards and the municipal court when his father, as mayor, appoints those bodies and sits on the planning board?

Plain-English summary

The Committee was asked whether an attorney or his associate may represent clients before the local municipal court and local boards where the attorney's father, as mayor, participates in the appointments to those bodies and sits on the planning board. It acknowledged that a mayor often wields considerable economic and political power, that the stakes in planning and zoning matters are often high, and that success before such boards is sometimes thought to depend on the support of influential persons. For that reason, it said, an attorney related to a powerful local figure must take care to avoid the appearance of impropriety addressed by DR 9-101(C), which bars a lawyer from stating or implying that he can improperly influence a tribunal, legislative body, or public official.

The Committee restated its settled view that an attorney need not refuse employment merely because he may have to present his case before a relative; in that situation it is incumbent on the relative to remove himself from the deliberations, citing Opinion 136 and Kremer v. City of Plainfield, and comparing Opinion 169.

It concluded that, although care must be taken with both prospective clients and clients to observe DR 9-101(C), when an attorney's parent is the appointing power or participates in appointments, that relationship alone does not call for an inference of improper influence, and the attorney or his associates may appear before the public boards whose members are appointed by his parent.

Currency note

This opinion was issued in 1976, before New Jersey's adoption of the 2004 revisions to the Rules of Professional Conduct, and predates the 1984 replacement of the Disciplinary Rules by the RPCs. Conflict and appearance-of-impropriety questions of this kind are now analyzed under RPC 1.7; New Jersey abolished the separate appearance-of-impropriety standard in 2004. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer appear before boards his parent appoints or sits on?

A: Under this opinion, yes. The Committee held the family relationship alone does not call for an inference of improper influence.

Q: Does the rule extend to the lawyer's associates?

A: Yes. The Committee said the attorney or his associates may appear before the boards whose members are appointed by his parent.

Q: What limit did the Committee place on the practice?

A: The attorney must take care to avoid the appearance of impropriety under DR 9-101(C), that is, not to state or imply an ability to improperly influence a tribunal or official.

Background and rules framework

The opinion applied the appearance-of-impropriety standard of DR 9-101(C), as developed in its Opinions 136 and 169 and in Kremer v. City of Plainfield, to a lawyer practicing before boards his mayor-father appoints. In current New Jersey terms, the conflict question is governed by RPC 1.7.

Citations and references

Rules of Professional Conduct:

• DR 9-101(C) (not stating or implying ability to improperly influence a tribunal, legislative body, or official), as in effect 1976; now analyzed under MR 1.7 / NJ RPC 1.7

Cases:

• Kremer v. City of Plainfield, 101 N.J. Super. 346 (Law Div. 1968), on a lawyer appearing before a body that includes a relative

Other opinions cited:

• NJ ACPE Opinion 136, 91 N.J.L.J. 749 (1968); Opinion 169, 93 N.J.L.J. 17 (1970)

See also

• NJ ACPE Op. 363: Appearing Before a Planning Board Member Who Is a Client
• NJ ACPE Op. 375: Judge Sitting Where Counsel Is the Brother of His Partner

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp360-1.html
• Issuing authority: New Jersey Supreme Court Advisory Committee on Professional Ethics, via the NJ Courts Supreme Court Committees page

Original opinion text

Reproduced from a full-text mirror of the official opinion for research purposes. The linked official source controls.

99 N.J.L.J. 1166, December 30, 1976

OPINION 360

Practicing before Local Bodies Appointed by Parent or before Parent Board Member

An attorney inquires whether he or his associate may represent clients before the local municipal court and local boards where his father, as mayor, participates in the appointments to these bodies and sits on the planning board.

The mayor often wields considerable power in economic, as well as political affairs, and stakes are often very high in planning and zoning matters. Success before such boards is sometimes thought to depend upon the support of persons whose influence may affect the board's judgment. And so, an attorney related to a powerful local figure, as many mayors are, must take care to avoid the "appearance of impropriety."

As stated in DR 9-101(C),

A lawyer shall not state or imply that he is able to influence improperly or upon irrelevant grounds any tribunal legislative body, or public official.

We have always held that an attorney need not refuse employment because he may have to present his case before a relative. There, it is incumbent upon the relative to remove himself from the deliberations. Opinion 136, 91 N.J.L.J. 749 (1968), and Kremer v. City of Plainfield, 101 N.J. Super. 346 (Law Div. 1968). And compare Opinion 169, 93 N.J.L.J. 17 (1970).

Although care must be taken in dealing with both prospective clients and clients to observe DR 9-101(C), nevertheless, when an attorney's parent is the appointing power or participates in appointments, that relationship alone does not call for an inference of improper influence, and the attorney, or his associates, may appear before the public boards whose members are appointed by his parent.