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                                         97 N.J.L.J. 801
                                        October 17, 1974

ADVISORY COMMITTEE ON PROFESSIONAL ETHICS

Appointed by the New Jersey Supreme Court


OPINION 291

Conflict of Interests
Freeholder Representing Criminal Defendant

    The question presented by this inquiry is whether an attorney who is a member of the board of chosen freeholders may represent a criminal defendant indicted for a crime in the county where such attorney holds office.
    Although this Committee's jurisdiction does not extend to the conduct of a public official as such, a public official who is also an attorney is nevertheless subject to the ethical standards of his profession, even though there is no attorney-client relationship involved in the public office. In re Genser, 15 N.J. 600, 606 (1954); Opinion 70, 88 N.J.L.J. 161 (1965). Where the public interest is involved, every situation which affords even the slightest chance for impropriety should, if possible, be avoided, to eliminate public suspicion that an attorney in public office is using his position or influence on behalf of a client. Opinion 88, 89 N.J.L.J. 49 (1966). If we are to maintain public confidence in our system of government and the legal profession, attorneys who serve as public officials must avoid not only direct conflicts of interests, but also any situation which might appear to involve a conflict of interest. American Bar Association, Committee on Professional Ethics and Grievances, Opinion 49 (1931).
    This Committee has on numerous occasions discussed the limitations on the practice of municipal attorneys, county attorneys, or attorneys to appointed municipal or county boards or bodies. Such officials serve as legal representatives of the general public, and their appearance on behalf of private clients before other public officials of the same county or municipality would inevitably give rise to the suspicion that, by virtue of being members of the same official family, they can assert influence on behalf of their clients beyond that possessed by other members of the bar. Opinion 106, 90 N.J.L.J. 97 (1967).
    Thus, a county attorney may not represent a criminal defendant indicted or tried in that county, nor may he represent a private party before a municipal court in the county, the county tax board, or any other agency of the county. Opinion 106, supra. Similarly, the attorney for a county planning board may not represent persons accused of crime within that county. Opinion 168, 93 N.J.L.J. 7 (1970). A county attorney, or any member or associate of his firm, may not appear in any municipal court in the county to represent a defendant charged with a non-indictable offense, Opinion 268, 96 N.J.L.J. 1325 (1973), and the county attorney or his assistant may not even appear on behalf of a county employee charged with a criminal offense in a situation where the county is legally obligated to provide the employee with an attorney. Opinion 272, 96 N.J.L.J. 1373 (1973).

    The restrictions applicable to a county attorney apply with even more force to a member of the board of chosen freeholders. In Opinion 202, 94 N.J.L.J. 309 (1971), we held that a firm which sublets space to another attorney, who is a member of the county board of chosen freeholders, could not appear before the county board of taxation. As we stated there, it is clear that what is prohibited for a county attorney is also prohibited for an attorney who serves as a member of the board of chosen freeholders.
    We recognize that the county prosecutor is appointed by the governor, and that to a large extent he is independent of the board of chosen freeholders. Nevertheless, the expenses of the prosecutor's office are paid by the county treasurer, after approval by the board of chosen freeholders. N.J.S. 2A:158-7. There is therefore a danger that members of the prosecutor's staff might be inclined to give a freeholder-attorney special consideration because of his position, but even more important than this possibility is the inherent appearance of conflict which this situation inevitably presents.
    We therefore conclude that a member of the board chosen freeholders may not ethically represent a criminal defendant indicted for a crime in the county in which the freeholder-attorney holds office.
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