Link to original WordPerfect Document

                                         94 N.J.L.J. 44
                                        January 21, 1971

ADVISORY COMMITTEE ON PROFESSIONAL ETHICS

Appointed by the Supreme Court of New Jersey

OPINION 192

Conflict of Interest
Borough Prosecutor
Office Associate of Councilman

    An attorney inquires:

            Is there a conflict of interest if I am appointed borough prosecutor while my "office" associate is councilman in the same borough?

    The inquirer engages in private practice and shares office space with another lawyer who is a councilman in the same borough, which is considering the inquirer for employment as borough prosecutor. The borough prosecutorship is a part-time position and involves practice before the municipal court in criminal matters and defending appeals in the county court.
    R. 1:15-3 provides that an attorney shall not practice in the municipal court of the municipality in which he is a member of the governing body. R. 1:15-4 extends the limitations to a partner, employer, employee or office associate.
    In N.J. Advisory Committee on Professional Ethics, Opinion 22, 87 N.J.L.J. 13 (1964), we quoted from an opinion of the Supreme Court, which should be the guideline for attorneys who become public officials:
    ...Similarly, our courts have recently stressed that public officials should avoid not only real conflicts of interest but apparent conflicts of interest as well. ....

We held that an attorney sharing office space with another attorney who was a member of a municipal governing body cannot represent an applicant for a zoning variance before the board of adjustment of the same municipality.
    The municipal prosecutor is a creature of the governing body of the municipality. The governing body makes the appointment and determines the salary.
    In the American Bar Association, Committee on Professional Ethics, Opinions 34 (1931), 30 (1931), it was held that the duty of an attorney in public employ is to be and remain above all suspicion even at personal financial sacrifice. In N.J. Advisory Committee on Professional Ethics, Opinion 189, 93 N.J.L.J. 789 (1970), we reviewed in detail the principles which should guide attorneys in their relationship with governmental agencies. We, therefore, hold that it would be improper for a lawyer to act as borough prosecutor while his office associate is a councilman in the same borough.

* * *

This archive is a service of Rutgers University School of Law - Camden