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Deluca v. Kahr Brothers Inc.

Decided: October 22, 1979.

RONALD AND JOAN DELUCA, HIS WIFE; RICHARD AND JUDY BANDLOW, HIS WIFE; JOSEPH CARLIS; DONALD D'AGOSTINO; GEORGE AND ALICE DEROSA, HIS WIFE; THOMAS AND MARGARET D'EUSTACHIO, HIS WIFE; BRUCE FRANKS; FRANK AND URSULA GUILIANO, HIS WIFE; DONALD AND JOANNE HANNON, HIS WIFE; DAVID IWANICHI; TIBOR LORINCZ; DAVID AND MARILYN LYNCH, HIS WIFE; ROBERT AND JOAN LYONS, HIS WIFE; EDWARD AND BARBARA MANKOVICH, HIS WIFE; WILLIAM AND DEBRA MCDOWELL, HIS WIFE; EUGENE AND MARIANNE MICHALSKI, HIS WIFE; JOHN AND RENEE NAYLOR, HIS WIFE; JOHN AND MARIA PATSAROS, HIS WIFE; M. JOAN PEARSON; ROBERT AND MARGARET STURM, HIS WIFE; WILLIAM TOCK; FRANK TOTH, SR.; JACK WINKELSPECHT; TED AND DALE WOMPEIRSKI, HIS WIFE, PLAINTIFFS,
v.
KAHR BROTHERS, INC.; RICHARD KAHR, INDIVIDUALLY; ROBERT KAHR, INDIVIDUALLY; IRONGATE ASSOCIATES; EDGEWATER PROPERTIES CO.; ORCHARD ESTATES; HENRY CARPENTER, INDIVIDUALLY; TOWN & COUNTRY REALTY, INC.; STANLEY SLOVIN, INDIVIDUALLY; THE TOWNSHIP COMMITTEE OF EDGEWATER PARK; THE PLANNING BOARD OF EDGEWATER PARK; THE ZONING BOARD OF ADJUSTMENT OF EDGEWATER PARK; JOHN H. SHOEN, INDIVIDUALLY; THE STATE OF NEW JERSEY, DEPARTMENT OF COMMUNITY AFFAIRS, BUREAU OF CONSTRUCTION CODE ENFORCEMENT; RICHARD VOGEL, INDIVIDUALLY; RALPH DEVINO, INDIVIDUALLY; CONGRESS TITLE CO., JOINTLY, SEVERALLY AND INDIVIDUALLY, DEFENDANTS, V. BERNARD P. WOJTKOWIAK, THIRD-PARTY DEFENDANT



Haines, J.s.c.

Haines

Thirty-nine plaintiffs in this case have sued 17 defendants. Among those named as defendants are the Township Committee of the Township of Edgewater Park, the township's planning board, its zoning board and its construction official. Plaintiffs are purchasers of homes in a development known as "Orchard Estates," situate in the township. They complain of defective construction and seek damages as well as injunctive relief for the failure of the municipal officials to enforce the township's building code and soil conservation plan when issuing certificates of occupancy and in other respects. Crossclaims and counterclaims have blossomed but none pits the municipal interest or officials against each other.

The township committee, faced with the direct and indirect employment of counsel to represent not only its own interests but also those of the planning board, zoning board and construction official, requests directions as to whether or not all of these defendants may be represented by the same attorney. The

concern of the township in making that arrangement is obvious: in the final analysis, the fees and expenses of all counsel must be paid from municipal funds. It is also of interest to the court that duplicate representation be avoided; litigation then proceeds with the greatest efficiency.

At the outset it must be recognized that each of the defendant entities involved in the pending motion is autonomous. Once appointed by the township governing body, the planning board and zoning board operate independently. N.J.S.A. 40:55D-20 provides: "Any power expressly authorized by this act to be exercised by (1) planning board or (2) board of adjustment shall not be exercised by any other body, except as otherwise provided in this act."

Each body hires its own attorney, N.J.S.A. 40A:9-139, 40:55D-24 and 71; each adopts its own rules, N.J.S.A. 40:55D-8. Consequently, the township committee may not deny separate representation to the boards if they insist upon it. However, nothing prevents their cooperation in the employment of a single counsel subject to rules regarding conflicts of interest and ethical rules applying to attorneys. It is these rules which concern the township committee and prompt its request for directions.

It is common practice for courts to consider problems involving conflicts of interest in which attorneys are involved, In re Lanza , 65 N.J. 347 (1974); State v. Land , 73 N.J. 24 (1977); Clark v. Corliss , 98 N.J. Super. 323 (App.Div.1967), including such problems involving them as public officers, Reilly v. Ozzard , 33 N.J. 529 (1960); Schear v. Elizabeth , 41 N.J. 321 (1964). While ethical considerations applying to attorneys are necessarily involved, there is no preemption of jurisdiction by the New Jersey Supreme Court Advisory Committee on Professional Ethics. R. 1:19-2 provides that that committee "shall not consider an inquiry involving a pending action where its opinion might affect the interests of the parties . . .." N.J.Const. (1947), Art. VI, ยง II, par. 3, provides that "[t]he Supreme Court shall

have jurisdiction over the admission to the practice of law and the discipline of persons admitted." That provision is implemented by R. 1:20 which sets forth procedural rules governing the discipline of attorneys. This is not a disciplinary proceeding. Indeed, directions are sought to avoid such a proceeding. Consequently, jurisdiction is not affected by the Constitution or the rule. I conclude that I may decide the question.

Our Disciplinary Rules provide:

(A) A lawyer shall decline proffered employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment, except to the extent permitted under DR 5-105(C).

(B) A lawyer shall not continue multiple employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by his representation of another ...


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