97 N.J.L.J. 601
August 15, 1974
Conflict of Interest
Political Activity - Municipal Practice
An attorney inquires whether a municipal prosecutor may ethically continue to be active in the municipality adjoining the municipality for which he acts as prosecutor; and further whether he may be politically active in the county wherein both municipalities are situate.
R. 1:17-1 prohibits from political activity all judges, court personnel, and "all persons employed by or regularly assigned to a ... municipal court."
R. 1:17-2 specifically excludes from its coverage county prosecutors except as otherwise provided by N.J.S. 2A:158-21.
The intent of R. 1:17 is to regulate the conduct of the judicial branch. The statute dealing with activities of county prosecutors does not by its terms apply to municipal prosecutors.
The municipal prosecutor who appears and represents the prosecuting interest in a municipal court is actually "serving as the attorney for the municipality." N.J. Advisory Committee on Professional Ethics, Opinion 8, 86 N.J.L.J. 718 (1963). By virtue of R. 7:4-4 a municipal prosecutor, municipal attorney, or indeed any lawyer, may appear and conduct the prosecution of actions in the name of the State of New Jersey in municipal courts.
Where no specific rule or statute prescribes the conduct, we must look to the general principles regulating the conduct of attorneys to determine whether there is any ethical question presented. We recently restated the fundamental principle that governs such questions whether there is appearance of conflict to lay public. N.J. Advisory Committee on Professional Ethics, Opinion 265, 96 N.J.L.J. 1253 (1973).
That principle pervades the recent opinion of our Supreme Court, State v. Galati, 64 N.J. 572 (1974), holding that a P.B.A. attorney may not defend a party when an officer of the local will be testifying for the State.
The Court said:
...in matters of ethics and professional probity, the cause and effect impact upon the public consciousness is almost, perhaps quite, as important as the actual fact Cf. Disciplinary Rule 9-10l exhorting the lawyer to avoid "even the appearance of impropriety." So also, in In re Spitalnick, 63 N.J. 429, 431, 432 (1973), in upholding "the fundamental principle of disinterested justice which is the bulwark of our judicial system," our Court asserted that "a community without certainty in the true administration of justice is a community without justice.
This Court held in State v. Deutsch, 34 N.J. 190, 206 (1961), that "it is vital that justice be administered not only with a balance that is clear and true but also with such eminently fair procedures that the litigants and the public will always have confidence that it is being so administered", quoting the words of
Justice Frankfurter in Offutt v. United States, 348 U.S. 11, 14, 7 S.Ct. 11, 99 L. Ed. 11, 16 (1954): "justice must satisfy the appearance of justice."
In a free democracy the administration of justice rests very largely not only on Constitution and laws, but upon public confidence in its integrity and impartiality in execution.
The Court found that the quasi-public status of the P.B.A. attorney was bound to incur a public suspicion that the attorney could trade on his official connections, and cited its own R. 1:15- 3(b) forbidding a municipal attorney from appearing in his own court.
Judged by those standards we find nothing unethical in the inquirer's proposed course of conduct. He espressly states that the political activity is not even to be in the municipality wherein he serves. By analogy, R. 1:15-3(b) permits a municipal attorney to represent in a joint municipal court a resident of an adjoining municipality. In Opinion 265, 96 N.J.L.J. 1253 (1973), we held that a municipal public defender could represent private clients in his municipality's court since his public status was as attorney for the indigent defendants and not the municipality.
Attorneys have played a historic role in the development of the American political process. This is stated to be "highly desirable, as lawyers are uniquely qualified to make significant contributions to the improvement of the legal system," EC 8-7, Code of Professional Responsibility of the American Bar Association. On the facts stated we do not believe that the public would be bound to incur a belief that such an attorney would have a special status or bridge of confidentiality and trust which would set him apart from other lawyers. So long as the attorney's activities do not create an appearance of professional impropriety or conflict with his official duties, his conduct is permissible. Canon 9, former A.B.A. Code of Professional Responsibility.