Conflict of Interest: Local PBA Attorney Representing Zoning Board of the Same Municipality

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123 N.J.L.J. 1622
June 29, 1989

ADVISORY COMMITTEE ON PROFESSIONAL ETHICS

Appointed by the Supreme Court of New Jersey


OPINION 628

Conflict of Interest:
Local PBA Attorney Representing
Zoning Board of the Same Municipality

This inquirer asks whether he may serve as attorney for a local policemen's benevolent association (PBA) while simultaneously representing the zoning board of the same municipality. He states that as zoning board attorney, he renders advice on legal issues and reviews resolutions but has no role in formulating zoning ordinances or in representing the board on zoning applicant appeals to the municipal governing body. As PBA attorney, he assists in collective bargaining negotiations with the municipality and in the administration of the negotiated contract as well as in representing the interests of the individual PBA members. Neither the zoning board nor any of its members have any function in the collective bargaining process with the PBA, and neither the PBA nor any of its members have any involvement with the zoning board other than as police officers acting in their official capacity.
The most commonly invoked ethical constraint upon dual representations by a PBA attorney is that the attorney may not appear for a private party in a criminal or quasi-criminal proceeding in which a police officer from the same PBA chapter may be called to testify. State v. Galati, 64 N.J. 576, 578 (1974); Opinion 113, 90 N.J.L.J. 473 (1967); Opinion 196, 94 N.J.L.J. 65 (1971). See also Opinion 404, 102 N.J. 205 (1978). The reason

for the prohibition has been stated by the Supreme Court as follows:
So it is that when the PBA's lawyer undertakes the representation of a private cause in which a member of that same PBA is destined to testify (on one side or another) there is bound to occur a public suspicion that the PBA witness will be inclined to palliate or vivify his testimony in order to accommodate the lawyer who, outside the courtroom, is en rapport with and supportive of the private and organizational interest of the PBA witness.

And should the public so believe, and thus suspect the outcome of the litigation proceeded from undue influence upon the policeman's testimony, and not from the merits, there is a sure result. The doubts thus engendered or suspicions aroused ('these fellows all stick together') impoverish the appearance of justice and taint the image of law and its evenhanded enforcement. State v. Galati, supra, 64 N.J. at 576.

In view of the factually precise nature of this problem, our rulings have declined to extend the restrictions to other situations in which the element of local police testimony is not present. We held in Opinion 260, 96 N.J.L.J. 1129 (1973), that our opinions in this area should not be "read so broadly as to preclude the inquirer or members of his firm from appearing in any court where no member of the local PBA represented by the inquirer is involved in any way." In Supplement to Opinion 320, 100 N.J.L.J. 1126 (1977), we ruled that the restriction does not generally apply to civil matters but only to criminal, quasi criminal or disciplinary proceedings in which a PBA member may be required to testify.

More pertinently to the instant inquiry, we have held that a local PBA attorney may act concurrently as attorney for the municipal board of education, subject to occasional disqualification if the board should bring court proceedings in which municipal police officers are witnesses. Opinion 385, 101 N.J.L.J. 41 (1978). And in Opinion 596, 118 N.J.L.J. 875 (1986), we held that an attorney whose firm represents the local PBA may also serve as a member of the municipal governing body as long as he recuses himself from matters concerning the police department.
Consistent with these precedents, we find no inherent conflict of interests in the inquirer's service as both PBA attorney and legal advisor to the zoning board. Such an arrangement, however, is subject always to the rule of occasional disqualification if an actual or apparent conflict should arise in a given situation. In particular, the inquirer should not act as zoning board attorney in any contested proceeding which involves the testimony of police officers or other participation by the municipal police department.
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