Can an attorney who serves on a municipal environmental commission represent private clients before that municipality's planning board, board of adjustment, board of health, and municipal court?

Plain-English summary

An attorney serving as a member of a municipal environmental commission, N.J.S.A. 40:56A-1 et seq., asked whether he could represent other clients before the planning board, board of adjustment, board of health, and municipal court of the same municipality, so long as his appearances would not conflict with his responsibility to the commission. The Committee described the commission's structure: members appointed by the municipality (one of whom must be a planning board member), a mayor-appointed chairman, council-fixed salaries within appropriated funds, and powers subject to council approval.

Although it had not previously dealt with environmental commissions, the Committee had addressed the same basic question for many similar municipal bodies, including housing authorities, boards of health, parking authorities, redevelopment agencies, and senior-citizen housing associations. It focused on Opinion 281, concerning a Title 15 nonprofit senior-citizen housing association whose trustees were appointed by the mayor and council. There, even though the association was autonomous in its activities, the Committee had held that because the trustees owed their appointments to the governing body, counsel for the association, like counsel for a redevelopment agency in Opinion 123, could not appear before the town's municipal bodies on behalf of private clients.

The Committee said its views had not changed. Counsel in these cases must make a choice: represent the autonomous agency, and thereby preclude themselves and their firms from practicing before the various town bodies, or decline representation of the agency and represent private clients before the various municipal bodies.

Currency note

This opinion was issued in 1977, 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 questions of this kind, decided in part on the appearance-of-impropriety standard New Jersey later abolished in 2004, are now analyzed under RPC 1.7. Treat this page as historical context, not current guidance.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 sit on a town's environmental commission and also appear before its boards for private clients?

A: Under this opinion, no. He must choose between the commission role and private practice before the town's planning board, board of adjustment, board of health, and municipal court.

Q: Why did commission membership preclude the private appearances?

A: Because commission members owe their appointments to the municipal governing body. By analogy to redevelopment-agency and senior-citizen-housing counsel, that tie barred appearances before the town's bodies for private clients.

Q: Does the choice extend to the lawyer's firm?

A: Yes. The Committee said that serving the agency precludes the attorney and the members of his firm from practicing before the various town bodies.

Background and rules framework

The opinion applied the Committee's line of public-body conflict opinions (including Opinions 123 and 281) to a newly created municipal environmental commission, holding that a member-attorney whose appointment flows from the governing body must choose between the commission role and private appearances before the town's bodies. In current New Jersey terms, conflict-of-interest questions are governed by RPC 1.7.

Citations and references

Rules of Professional Conduct:

• MR 1.7 / NJ RPC 1.7 (conflict of interest)

Statutes:

• N.J.S.A. 40:56A-1 et seq. (municipal environmental commissions)

Other opinions cited:

• NJ ACPE Opinion 123, 91 N.J.L.J. 97 (1968); Opinion 281, 97 N.J.L.J. 362 (1974); and earlier opinions on housing authorities, boards of health, parking authorities, and similar bodies (Opinions 18, 24, 37, 52, 64, 77, 79, 96, 98)

See also

• NJ ACPE Op. 430: Municipal Attorney's Partner Serving on a Planning Board
• NJ ACPE Op. 449: County Legal Assistant Also Municipal Planning Board Counsel
• NJ ACPE Op. 415: Office Association of Municipal and County Counsel

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp374-1.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.

100 N.J.L.J. 646, July 21, 1977

OPINION 374

Conflict of Interest
Environmental Commission
Member Before Municipal Agencies

An attorney serving as a member of a municipal environmental commission, N.J.S.A. 40:56A-1, et seq., inquires whether he may represent other clients before the planning board, board of adjustment, board of health and municipal court of the same municipality as long as his appearance would not conflict with his responsibility to the environmental commission.

The members of the commission are appointed by the municipality, one of whom must be a member of the planning board. The mayor appoints the chairman; the commission may appoint employees, but salaries shall be fixed by the council, and total salaries of all such persons shall be within limits of funds appropriated to the commission, and the commission shall expend no funds and shall incur no expenses except to the extent and for the items and purposes specified in the borough's annual budget. The powers granted to the commission are subject to the approval of the council.

We have not previously dealt with environmental commissions which recently came into being by an amendment to the municipalities act, N.J.S.A. 40:56A-1, et seq. We have previously dealt with the same basic question in connection with an attorney for a city housing authority, Opinion 18, 86 N.J.L.J. 734 (1963); an attorney for a local board of health, Opinion 24, 87 N.J.L.J. 19 (1964); attorney as commissioner on board of health, Opinion 37, 87 N.J.L.J. 190 (1964); attorney for municipal parking authority, Opinion 52, 87 N.J.L.J. 610 (1964); attorney member of municipal parking, Opinion 64, 87 N.J.L.J. 801 (1964); attorney member of board of education, appointed, Opinion 77, 88 N.J.L.J. 453 (1965); attorney for municipal housing authority, Opinion 79, 88 N.J.L.J. 460 (1965); attorney asked by mayor to serve as chairman of three-man committee to advise professional assessor on land values, Opinion 96, 89 N.J.L.J. 49 (1966); attorney for intermunicipal sewerage authority, Opinion 98, 89 N.J.L.J. 497 (1966); attorney for redevelopment agency, Opinion 123, 91 N.J.L.J. 97 (1968); and attorney for senior citizen housing association, Opinion 281, 97 N.J.L.J. 362 (1974).

In the last case, the citizens housing association was a Title 15 nonprofit association created under the statute for the purpose of independently financing, constructing and managing senior citizens housing in the town. The town council determined by resolution to create this independent entity, and the resolution provided in part that it was "a municipally inspired, community oriented, broadly-represented, nonprofit corporation or association." The original board of trustees of the housing association consisted of seven members, two appointed by the mayor, and one by each member of the five member town council. The trustees were appointed for terms of three years and subsequent appointments were to be on the same basis as the original appointments, i.e., the mayor and town council to make such appointments.

The town council expended no funds on behalf of the housing association; and the latter was free to act as it chose. Aside from the power of the mayor and council to appoint trustees, there was no relationship between the town and the association. The association chose its own business administrator and counsel. Payment to the latter was made by the association.

Concerning the inquiry as to whether counsel for the association might appear for private clients before various municipal bodies, such as the planning board, board of adjustment, etc., we said:

While it is true that the association occupies a position of autonomy in its activities so far as the town is concerned, it is equally true that the members of the board of trustees of the association, to a degree, are controlled by the town, in that they owe their appointments to the governing body. In a situation somewhat analogous, Opinion 123, 91 N.J.L.J. 97 (1968), this committee said that the attorney of a redevelopment agency, which is also autonomous so far as the town is concerned and similar to the agency in question here, could not appear before the town's municipal bodies on behalf of private clients. In that opinion, we cited earlier opinions bearing on the same subject.

Our views on this have not changed. Counsel in these cases must make a choice as to whether they desire to represent the autonomous agency and thus preclude the practice by themselves and members of their firms before the various town bodies, or whether they believe it to be more to their advantage to decline representation of the agency and represent private clients before the various municipal bodies.