An Attorney who represents a municipal Planning Board and provides advice to the Planning Board on interpreting the Zoning Ordinance in a particular matter, should use extreme caution and carefully evaluate the possibility that a conflict of interest may exist in providing advice to the Zoning Board of Adjustment on the same matter on appeal to the Zoning Board of Adjustment.
Attorney A represents a municipal Planning Board with respect to a subdivision application that requires the Board to interpret the Zoning Ordinance. The Attorney provides the Planning Board with advice regarding the interpretation of the Zoning Ordinance. The Planning Board makes a final decision, and an appeal is taken to the Zoning Board of Adjustment (“ZBA”) pursuant to RSA 676:5, III regarding the interpretation of the Zoning Ordinance. Attorney A provides advice to the ZBA regarding the interpretation of the Zoning Ordinance. Does Attorney A’s representation of the Planning Board and the ZBA constitute a conflict of interest under these circumstances?
The lesson to be learned from the above fact pattern is this: if you are unsure whether a particular situation presents a conflict of interest, the prudent course of action is to decline the representation. In short, if you have to ask it is probably a bad idea.
Although you may think you know the answer, an adjudicative body such as the Professional Conduct Committee or the Supreme Court may take a different view. Despite debating the above fact pattern over a period of months, based on some of the competing opinions described below, the Ethics Committee has been unable to arrive at a clear consensus as to whether Attorney A’s representation of the Planning Board and the ZBA constitutes a conflict of interest. So, the short answer is: having represented the Planning Board and being unsure if representing the ZBA in the same or a related action would constitute a conflict of interest, Attorney A should not, out of a surfeit of caution, represent the ZBA.
By the NHBA Ethics Committee
This opinion was submitted for publication to the NHBA Board of Governors at its March 18, 2021