99 N.J.L.J. 798
September 2, 1976
OPINION 351
Conflict of Interest
Municipal Attorney Representing Police
Officer on Probable Cause In Municipal Court
An inquiry has been presented posing the question of whether
a municipal attorney may represent a municipal police officer on a
probable cause hearing in the same municipal court.
The facts indicate that during a routine investigation by
municipal police officers, an incident occurred from which one
police officer has filed an assault and battery complaint against
an individual citizen, and the individual has countered with a
complaint against the officer, alleging atrocious assault and
battery, an indictable offense. The matter is recent and it is
awaiting a probable cause hearing. The inquirer says that the
probable cause hearing will be held in the municipal court of the
municipality for which the officer is a policeman. It is
contemplated that at the time the probable cause hearing is held
regarding the indictable offense charged against the police
officer, the disorderly persons offense charged against the
individual will also be tried.
It is further alleged that an assistant municipal prosecutor
of the municipality will present the State's case against the
police officer on the probable cause hearing. This leaves the
police officer without defense counsel at the probable cause
hearing.
The inquirer further states that as part of his duties as
municipal attorney, he will be required to advise the municipality
in matters concerning the police department, and he also admits
that in the past he has advised the municipality when a
disciplinary hearing was held involving a police officer as well as
other employees, and he recognizes that if such a situation
presented itself against an individual police officer, he would
withdraw from participation in the proceeding. The reason for this
inquiry is that his municipality desires to protect its reputation
and the specific reputation of the police department, and this
officer and the municipality are fearful that some future civil
litigation might arise out of the incident, and apparently for all
these reasons the municipality would like to have its attorney
represent the police officer.
The inquirer refers to our Opinion 104, 90 N.J.L.J. 49 (1967),
to justify his position in finding no impropriety for appearing in
defense of the police officer. In this Opinion the Committee stated
"our Supreme Court has implemented the basic policy in a great
variety of its rules, and indeed has expressly prohibited attorneys
from representing any defendant in the municipal court of the
municipality in which the lawyer is the municipal attorney...." It
further states that our Supreme Court has expressly authorized a
municipal attorney "to perform his official duties" when they
require representing a defendant in the municipal court (R. 1:15-
3(h)).
We recognize that in an instance of this kind, the police
officer has the statutory right to engage independent counsel at
the cost and expense of the municipality, and this is what we feel
he should do. One cannot escape the feeling that by virtue of the
complaint and counter complaints filed in this case, further direct
and indirect involvement of the police officer as well as the
municipality may at some time result, and it is because of all
these considerations that we have in a great variety of situations
indicated our views as to the impropriety of municipal attorneys
appearing on behalf of private clients or for incidents not
directly related to the municipality before municipal boards or
bodies. See Opinions 4, 18, 19, 20, 29, 64, 65, 68, 78, 79 and
many others. In Opinion 88, 89 N.J.L.J. 49 (1966), we said:
Running through all our opinions, in this
area of conflict, is the prevailing theme
that, where the public interest is involved,
every situation which affords a chance for
impropriety, however slight, should, if
possible, be avoided in order to eliminate
public suspicion that an attorney in public
office will use his position or influence in
behalf of a client. And this is so whether he
is the attorney for or a member of a public
body, board or agency. In this respect the
language of the ABA Committee on Professional
Ethics and Grievances, Opinion 49 (1931), is
particularly appropriate. The committee said:
"If the profession is to occupy that position
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.
We therefore are of the opinion that the municipal attorney
would not represent the municipal police officer on the probable
cause hearing in the municipal court.