90 N.J.L.J. 97
February 16, 1967
County Attorney and Prosecutor
An inquirer requests our opinion as to whether it would be proper for an attorney holding the position of county attorney, solicitor or counsel (a) to appear before the county tax board on behalf of a private client, (b) to represent a defendant before a magistrate in a criminal proceeding which is an indictable offense in the county which the county counsel serves, (c) to represent a defendant indicted for crime in that county, or (d) to appear before any agency of that county on behalf of a private client. He also desires to be informed as to whether, if he is precluded from representing private clients in any of the cited situations, such prohibition extends to his law partners and attorneys employed by him.
The inquirer asserts that in our Opinions 4, 18, 19, 20, 29, 64, 65, 68, 78 and 79 we have dealt with situations concerning municipal attorneys and their representation of clients before municipal boards or bodies, but that we have never specifically passed upon these questions as they relate to county attorneys (by
whatever name they may be known) or their assistants.
To pose the question is to suggest the answer. Neither the county attorney nor his assistants can represent private clients in any of the situations above stated, and this interdiction is applicable to their law partners and associates. This would apply also in a situation not mentioned by the inquirer where an indictment was found in another county but transferred for trial to the county in which the county attorney is an official. The county attorney represents all of the people of the county in matters affecting it. Thus, his conduct must be such as to prevent any inference arising that he is using his public office for private gain (see this Committee's Opinion 70, 88 N.J.L.J. 761 (1965)). This rule generally applies with equal force to attorneys representing municipalities, counties or the State. See Drinker, Legal Ethics 118, 119 (1963). Drinker goes so far as to state the rule to be, citing numerous opinions of the Committee on Professional Ethics and Grievance of the American Bar Association (hereafter ABA), that, if a public prosecutor of one state defends a person accused of crime in another state, it would tend to undermine public confidence in him, in his office, in his own state.
As stated above, there are a number of ABA opinions bearing on this situation, and Opinion 186 (1938) is exactly on point. There, a statutory county attorney sought to represent a defendant in a criminal proceeding in his own county. The defendant would have been prosecuted by the county prosecutor. The ABA opinion pointed out that the county attorney could not accept the representation because this would create "an unseemly situation likely to destroy public confidence in him as a public officer, and bring reproach to his profession." The opinion goes on to point out that, if such representation occurred, there would be presented the spectacle of one public official prosecuting, and another public official of the same county defending, an accused. The conflict of interest in such a case is obvious. See also ABA Opinions 16 (1929) and 242 (1942).
The inquirer in this case also poses the question of whether the prosecutor and assistant prosecutor of a county are prohibited from appearing before the county tax board, planning board and other agencies of the county. What we have stated above with respect to the county attorney also applies to the county prosecutor and his assistants, as well as to their partners and associates. The county prosecutor, while appointed by the governor, is paid by the county board of freeholders, as are his assistants. These officials are the legal representatives of the general public, and to have their appearance on behalf of private clients before other public officials of the same county or before county boards or offices cannot help but give rise to suspicion that, by virtue of being members of the same official county family, they have influence which could be asserted on behalf of such client beyond that possessed by other members of the bar.
Our Supreme Court has clearly indicated its views on this general problem in R.1:26, where certain classes of attorneys occupying positions of a public nature or associating with persons holding such offices are prohibited from practicing before certain governing bodies or boards. And, in R.1:26-4, it is stated that, where the attorney is prohibited from such practice such prohibition also extends to his partners, employers, employees and office associates.
We conclude that the same rule applies to the county attorney and county prosecutor, as well as to their partners and associates.