Rutgers School of Law, OAL case ACPE032

87 N.J.L.J. 185
March 26, 1964

ADVISORY COMMITTEE ON PROFESSIONAL ETHICS

Appointed by the New Jersey Supreme Court

OPINION 32

Conflict of Interest
Municipal Prosecutors

    The present inquiry is whether it is proper for an attorney who is an associate city solicitor, required on occasion to act as municipal prosecutor in the local municipal court, to engage in a civil matter arising from an automobile accident, after the processing in the municipal court of a traffic violation charged in
connection with said accident in which the attorney did not appear in his capacity as municipal prosecutor.
    The propriety of a municipal prosecutor engaging in civil matters arising out of automobile accidents in which he appeared in his official capacity before the municipal court is not involved. This Committee has already decided that such conduct would be improper. N.J. Advisory Committee on Professional Ethics, Opinion 8, 86 N.J.L.J. 718 (1963).
    We limit ourselves to the propriety of the municipal prosecutor engaging in civil matters in which he did not appear in the municipal court as the municipal prosecutor. The words, "not ordinarily be present," "not ordinarily be in attendance," used in the inquiry are irrelevant. Likewise, whether one or more parties to the accident have been charged with a traffic violation, or whether a conviction or acquittal resulted, is immaterial.

    Automobile accidents often give rise to inquiry into both criminal responsibility and civil liability of the parties involved. Initially, investigation is almost always made by local police, who determine whether prosecution is warranted and issue summonses. Municipal prosecutors frequently are consulted by the police during investigation, and always in the preparation for trial, and discuss and examine in detail with the police all evidence to be produced. It is the duty of the prosecutor to do so in his official capacity. A prosecutor engaging in civil matters arising out of an accident in which he has performed duties, as outlined, would be justly condemned as unethical and unprofessional in the representation of conflicting interests.
    As stated in A.B.A. Comm. on Professional Ethics and Grievances, Opinion 135 (1935):
        A prosecutor cannot profit by information gained in the course of performance of his duties as a public official. Public policy forbids. Aldridge vs. Capps, 56 Okla. 678, 156 P. 624. (Sup. Ct. 1916)

        By analogy, the thirty-first Canon of Judicial Ethics applies to the situation here presented. Referring to part time judges who practice law, it is there said: “In such cases one who practices law is in a position of great delicacy and must be scrupulously careful to avoid conduct in his practice whereby he utilizes or seems to utilize his judicial position to further his professional success.” This statement is equally applicable to prosecutors.

    To permit another municipal prosecutor, who may or may not have had access to the office files, reports and investigations and the confidence of the police, merely because he was not in attendance at the hearing, to engage in civil matters arising out of such cases only creates suspicion and should be avoided.
        If the profession is to occupy that position in public esteem which will enable it to be of the greatest usefulness, it must avoid not only all evil but must likewise avoid the appearance of evil. ABA Comm. on Professional Ethics and Grievances, Opinion 49 (1931).

    In the opinion of the Committee, the legal representation contemplated by this attorney is improper. See also N.J. Advisory Committee on Professional Ethics, Opinions 4, 86 N.J.L.J. 357 (1963) and 5, 86 N.J.L.J. 361 (1963).

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