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                                         90 N.J.L.J. 49
                                        January 26, 1967

ADVISORY COMMITTEE ON PROFESSIONAL ETHICS

Appointed by the New Jersey Supreme Court

OPINION 104

Municipal Prosecutor
Defense of Municipal Employee


    A lawyer presents the following question for our opinion: May a municipal prosecutor prosecute charges of "resisting arrest" and
"using obscene language in public" against a civilian defendant, and, in a consolidated trial, appear in defense of a police officer charged with assault by the civilian defendant arising out of the same incident? The inquirer states that the trial in question is one in the municipal court of the same municipality in which the policeman and prosecutor are serving.
    We are of the opinion that it would be improper for a municipal prosecutor to serve in such a dual capacity in the same trial.
    While prosecuting attorneys - and, indeed, all attorneys - are charged with a duty of seeing that justice is done in any trial, it must be recognized that in an adversary system of trial such as ours it is implicit that attorneys are advocates. While the traditional standards of our profession recognize that the primary duty of a prosecutor is not to convict but to see that justice is done, a prosecutor can never completely divorce himself from advocacy (see Canons of Professional Ethics, Canon 5). Moreover, in the public mind the prosecutor is the representative of the people who is designated to play an active role in bringing persons charged with criminal or quasi-criminal offenses to justice. Furthermore, as we have previously noted, a municipal prosecutor in the broad sense has as his client the whole municipality. See N.J. Advisory Committee on Professional Ethics Opinion 8, 86 N.J.L.J. 718 (1963). In the public mind, if he appears on behalf of a defendant, there will inevitably be some citizens who will believe that the attorney's position in the official family may have unfairly helped achieve his success in the trial.
    It is because of such considerations that we have in a great variety of situations indicated our views as to the impropriety of municipal attorneys appearing on behalf of private clients before municipal boards or bodies (Opinions 4, 18, 19, 20, 29, 65, 66, 68, 78 and 79).
    While we do not think that the basic soundness of such a standard of professional conduct can be successfully attacked, nevertheless, the present inquiry cannot be disposed of on this basis. Although our Supreme Court has implemented the basic policy in a great variety of its rules, and indeed has expressly prohibited attorneys from representing any defendant in the municipal court of the municipality in which the lawyer is the municipal attorney, the Court has also expressly authorized such representation of a defendant by a municipal attorney "in the performance of his official duties as municipal attorney" (R. 1:26- 3(c)). This departure from the basic philosophy above referred to was intended to permit municipal attorneys to appear on behalf of police officers, but we believe the exception granted by the Court was impelled by practical considerations, making full compliance with the basic philosophy presently unattainable. There are undoubtedly valid reasons in the public interest why police officers charged with offenses in such instances are entitled to representation by counsel without expense to them, and this is a problem which has troubled not only the courts but the Legislature
as well. (See, for example, Senate Bill No. 514, introduced December 5, 1966 to amend "An act providing for legal aid to police officers in suits against them arising from incidents in the line
of duty.") In any event, in the light of the express exception in the rule there can be no finding of impropriety in a situation where a municipal attorney appears in the municipal court merely because he is appearing in defense of a policeman of the municipality.
    We find no basis in the rule, however, to authorize a municipal attorney in a consolidated trial of two defendants, each charged with separate offenses arising out of the same incident, to appear for the State in prosecuting one charge and to appear for the defendant in defense of the other charge. Such dual participation in a criminal or quasi criminal trial by a member of the municipal family, however well intentioned, will surely create a suspicion in the minds of many of the citizens that the scales of
justice are not evenly balanced.

    While the duties imposed upon the attorney for the State and the attorney for the defense are basically similar, they are not identical. This is reflected in Canon 6, which reads:
    5. The Defense or Prosecution of Those Accused of Crime
            It is the right of the lawyer to undertake the defense of a person accused of crime, regardless of his personal opinion as to the guilt of the accused; otherwise innocent persons, victims only of suspicious circumstances, might be denied proper defense. Having undertaken such defense, the lawyer is bound by all fair and honorable means, to present every defense that the law of the land permits, to the end that no person may be deprived of life or liberty, but by due process of law.

            The primary duty of a lawyer engaged in public prosecution is not to convict, but to see that justice is done. The suppression of facts or the secreting of witnesses capable of establishing the innocence of the accused is highly reprehensible.

    We accordingly conclude that the dual representation by the same attorney in the case presented for consideration is improper. We note, however, that under the statute, N.J.S.A. 40:11-19, the municipality is permitted to retain independent counsel to defend the police officer.

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