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In re Opinion 452 of Advisory Committee on Professional Ethics

Decided: July 9, 1981.

IN RE OPINION 452 OF THE ADVISORY COMMITTEE ON PROFESSIONAL ETHICS


On petition for review of an opinion of the Advisory Committee on Professional Ethics.

For affirmance -- Chief Justice Wilentz and Justices Pashman, Clifford, Schreiber, Handler and Pollock. For reversal -- None. The opinion of the Court was delivered by Pollock, J.

Pollock

The issue in this case is whether an attorney may hold the position of municipal prosecutor while his partner holds the position of planning board attorney in the same municipality.

The Advisory Committee on Professional Ethics held in Opinion 452 "that it would be improper for a municipal prosecutor to be the partner of the attorney for the planning board in the same municipality." We granted motions to review Opinion 452. 85 N.J. 134 (1980). We now affirm that opinion because the challenged dual office holding creates an appearance of impropriety and a potential for conflict. Our decision necessarily concludes that the same attorney may not serve as both municipal attorney and planning board attorney. See DR 5-105(D); R. 1:15-4.

Opinion 452 reads:

Municipal Prosecutor Partner of Municipal Planning Board Attorney Conflict of Interest

Inquiry has been made whether an attorney may hold the position of municipal prosecutor at the same time that his partner holds the position of planning board attorney in the same municipality. This Committee has issued many opinions on the ethical concerns affecting the representation of two or more public bodies by the same attorney or by partners or associates.

"The disciplinary rules (DR5-105D), our prior opinions (e.g. Opinions 182 and 277) and the Rules of the Court (R. 1:15-4) clearly express the holding that if an attorney himself is required to decline employment because of a potential or actual conflict, then no partner or associate of his may accept or continue such employment." Opinion 366, 100 N.J.L.J. 290 (1977). Thus a lawyer may not do what his partner may not do. See Opinion 78, 88 N.J.L.J. 460 (1965). We have consistently held that where there is or may be a conflict of interest in a particular situation, the same attorney or his associates or partners should not undertake to represent two public bodies. Opinion 415, 103 N.J.L.J. 38 (1979). In similar circumstances we have held dual representation to be improper. For instance, in Opinion 366, supra we held that it would be improper for a municipal prosecutor to be the partner of an attorney for the zoning board of adjustment.

Similarly, in Opinion 67, 88 N.J.L.J. 81 (1965), we held that a municipal attorney cannot serve as attorney for any board or agency of the same municipality if there is or may be a conflict of interest in a particular situation. We reaffirmed that holding in Opinion 117, 90 N.J.L.J. 745 (1967), where a municipal attorney inquired whether he could serve as advisor to the borough's planning board in preparation of its master plan. See Opinion 127, 91 N.J.L.J. 262 (1968); Opinion 149, 92 N.J.L.J. 185 (1969); and Opinion 164, 92 N.J.L.J. 831 (1969). Likewise, in Opinion 415, supra, we held that the formation of a partnership between counsel for a municipality and counsel for a county, or county board or commission in which the municipality is located would be improper. Also in Opinion 5, 86 N.J.L.J. 361 (1963), we held that an attorney who serves as municipal prosecutor should be prohibited from appearing before the board of adjustment, planning board or mayor and council representing a personal client. See State v. Zold, 105 N.J. Super. 194 (Law Div. 1969), affirmed o.b., 110 N.J. Super. 33 (App.Div.1970).

Clearly, a municipal prosecutor is a municipal attorney. See Opinions 366 and 5, supra, and Opinion 182, 93 N.J.L.J. 492 (1970). The municipal prosecutor is a creature of the municipal government body which makes the appointment and determines the salary. Opinion 192, 94 N.J.L.J. 44 (1971). By statute, N.J.S.A. 40:55D-24, a municipal attorney is prohibited from serving as attorney for the planning board. Of equal significance, attorneys representing public bodies are the legal representatives of the general public and as such have the duty to be and remain above all suspicion even at personal financial sacrifice. See Opinions 415 and 192, supra.

The governing principle applied to inquiries in this area is that counsel for the public must conduct themselves and their practice so as to void (sic) the appearance of impropriety. See Opinions 415 and 192 supra, and Opinion 268, 76 N.J.L.J. 1325 (1973). Applying the above principle, the general policy set forth in the statute cited above, the disciplinary rules, Rules of Court and precedents, we believe that it would be improper for a municipal prosecutor to be the partner of the attorney for the planning board in the same municipality.

The number of attorneys employed by a municipality will vary depending upon the size and activity of the municipality. See generally Perillo v. Advisory Comm. on Professional Ethics, 83 N.J. 366, 377 (1980). A municipal family frequently includes a municipal attorney, who serves as counsel to the governing body; a municipal prosecutor, who prosecutes minor criminal offenses such as violations of traffic laws and ordinances; an attorney for the board of adjustment; and an attorney for the planning board. The avoidance of ...


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