Conflict of Interest Former Township Attorney Representing Variance Applicant

101 N.J.L.J. 120
February 9, 1978

OPINION 388

Conflict of Interest
Former Township Attorney
Representing Variance Applicant

A former township attorney who prepared a zoning ordinance amendment and defended its validity in a litigated case proposes to represent a property owner who was an adverse party in that litigation in seeking a variance from the provisions of the zoning ordinance amendment in question.
DR 9-101(B) provides that "[a] lawyer shall not accept private employment in a matter in which he had substantial responsibility while he was a public employee." In this instance, the inquirer indicates that, as municipal attorney, he participated in the drafting of an amendment to the municipal zoning ordinance concerning the use of certain private roads. This amendment was the result of the proposed use of a private road to provide access to a particular shopping center site. Subsequently, he represented the municipality in defending the zoning ordinance amendment in a law suit brought by the owner of the shopping center site. At this time, he proposes to represent the same owner in an application for a variance from the zoning ordinance provision which the inquirer drafted and which admittedly was designed to prevent the owner from using a private road to provide access to the shopping center Accordingly, on the facts above, it appears that the inquirer had substantial responsibility while he was township attorney in a matter so closely related to the instant variance application that his representation of the applicant would create an appearance of impropriety, contrary to DR 9-101. See generally this Committee's Opinion 258, 96 N.J.L.J. 751 (1973); Opinion 285, 97 N.J.L.J. 363 (1974); and Opinion 42, 87 N.J.L.J. 285 (1964). Furthermore, such representation might require the attorney to advance legal, factual or public policy positions inconsistent with those he took as township attorney during the previous litigation. Therefore, we find it would be improper for the inquire to undertake the representation describe.