Conflict of Interest - Representation of Township and its Zoning Board of Adjustment in Litigation

115 N.J.L.J. 615
May 23, 1985

OPINION 561

Conflict of Interest -
Representation of Township and its
Zoning Board of Adjustment in Litigation

The inquirer is the Solicitor of a township zoning board. A resident has instituted a suit against the board and the municipality challenging a variance granted by the board and approved by the governing body. The question posed is whether the zoning board attorney, under these circumstances, may appear in the suit and defend both the board and the municipality.
In an analogous situation, the Court in DeLuca v. Kahr Brothers, Inc., 171 N.J. Super. 100 (Law Div. 1979), concluded that since the three township bodies sued had mutual interests in defending the claims asserted, had no grievances against the other, and could protect the municipal pocketbook by one defense, no conflict existed.
The inquirer acknowledges that the DeLuca case would apply if DR 5-105 were still effective, but asks whether RPC 1.7, which replaced DR 5-105, changes the conclusion reached in that case. We are of the opinion that it does not, and that under the circumstances, no conflict exists. We suggest, as the Court in DeLuca did, that if a conflict develops in the future, withdrawal may be necessary; further, that the possibility of future complications be explained fully to both defendants.
By this Opinion, we do not intend to hold that there are no differences between DR 5-105 and RPC 1.7. We only hold that, under the circumstances presented here, the Rules do not apply differently.