Conflict of Interest Waiver by Public Body

99 N.J.L.J. 862
September 23, 1976

OPINION 353

Conflict of Interest
Waiver by Public Body

An attorney for a municipal planning board asks whether he may advise the board on a matter in which he may have a financial, property or personal interest within the purview of DR 5-101(A). He apparently has the consent of the applicant to the planning board and the board itself, both being fully acquainted with the circumstances of the attorney's interest. He asks whether such consent would cure the defect as provided in DR 5-101(A).
The inquirer is acquainted with the rule stated repeatedly by this Committee (see Opinions 4, 86 N.J.L.J. 357 (1963); 187, 93 N.J.L.J. 649 (1970); and 208, 94 N.J.L.J. 454 (1971), inter alia) that consent of a public body is unavailable to cure a conflict which arises out of the interests of two opposing parties. His inquiry is whether that same rule applies where the conflict arises between the attorney's own personal interest and the public interest. The answer is that it does.
Where the public interest is involved, an attorney may not represent conflicting interests, even with the consent of all concerned. See Ahto vs. Weaver, 39 N.J. 418 (1963), cited in Schear
v. Elizabeth, 41 N.J. 321 (1964). In the latter case, the Court discussed that statutory provision of N.J.S.A. 40:55-1.4, specifically requiring that "[n]o member of the planning board shall be permitted to act on any matter in which he has, either directly or indirectly, any personal or financial interest." The Court stated that the rule must be applied to the facts, of a particular case, with a sensitive regard to the public interest, and that where the duties of a public office call for services of an attorney, possible areas of conflict are subjected to even closer scrutiny and more stringent limitation.
There is no reason in this case to depart from the general rule that the consent of the parties, which would be available to cure a conflict within the meaning of DR 5-101(A) as to private parties, is unavailable where the consent required is that of a public body. The inquirer should not advise the planning board in a matter as to which he has a personal, financial, business, or property interest.