OPINION 359 (Supplement)

Office Relationships -
Municipal Court Judge, Municipal
Prosecutor, County Assistant Prosecutor

    In Opinion 359, 99 N.J.L.J. 1153 (1976), this Committee considered associations of municipal court judges with municipal or county assistant prosecutors. Inquiry is now made as to whether a municipal court judge and a municipal prosecutor of different municipalities may form an association, employment or partnership arrangement provided the participants other than the municipal court judge refrain from the defense of criminal, quasi-criminal or penal matters within that county.
    We are also asked whether under R. 1:15 a law firm which includes the judge of a municipal court may file and argue an appeal in the Appellate Division from a conviction in county court on a disorderly person's offense from the municipal court presided over by that judge where the judge had no knowledge of the original trial.
    Under R 1:15-1(c) a municipal court judge may not practice in any criminal quasi-criminal or penal matter except to perform the
duties of a municipal attorney for another municipality. And a partner, employer, employee or office associate of a municipal court judge is excluded from such criminal practice within the county of the municipal court. R. 1:15-4.
    The question is whether the prosecutorial functions of a municipal attorney in any way affect or bar criminal defense practice so as to limit his professional office relationships. A municipal court judge may not serve on the staff of a prosecutor in any county. But he may be associated with an assistant prosecutor from a county other than the county of his court. R 1:15-1(c). And, while the same rule permits a municipal judge to serve as a municipal attorney of another municipality, that judge may not do so if his primary duty is to prosecute cases, because under that rule he may not practice in any criminal matter. Yet his law partner, associate, employee or employer may serve as a municipal prosecutor in any other municipal court. See New Jersey Municipal Court Manual 85 (1972). Thus, the rules exclude a municipal court judge from all prosecutorial practice; but under R 1:15-4 he may be associated with a municipal prosecutor of other municipal courts or with a member of a prosecutor's staff of a county other than the county in which his court is located.
    Similarly with respect to criminal defense practice, a municipal court judge is excluded from all criminal practice statewide, including federal But under R. 1:164 the associate of
that judge is excluded from criminal practice only within the county in which that court is located. A municipal attorney is not affected by such a broad limitation. R. 1:16-3(b) excludes him from criminal practice in the court of the municipality he represents. Hence he is free to practice criminal law outside his own municipality. But if he becomes associated with a municipal court judge, the limitation extends to the entire county in which that judge's court is located. R. 1:154. And see New Jersey Municipal Court Manual 85 (1972). Hence, an association, partnership or employment arrangement between a municipal court judge and a municipal attorney of another municipality is permissible provided the municipal attorney observes R. 1:15-3(b) and 1:15-4 and refrains from practicing criminal defense law within the county where the court is located.
    A municipal prosecutor is a municipal attorney whose principal or primary duty is the prosecution of criminal and quasi-criminal matters before the municipal court on behalf of that municipality and the State. Our Opinion 8, 86 N.J.L.J. 718 (1963), and R. 1:15- 3(b) and (c) apply to his conduct. In Opinion 239, 95 N.J.L.J. 481 (1972), we held that where the offense occurred outside the municipality served by a municipal prosecutor, that attorney could properly appear for the defense before the county court. There we also construed R. 1: 15-3(b) and held that a municipal prosecutor is excluded from criminal defense practice only where the offense originated in or the accused resided in the municipality served by him. In Opinion 182, 93 N.J.L.J. 492 (1970), we held that unless a matter in any way relates to the municipality served by a municipal prosecutor, his partners may practice in the other municipal courts of that county and in the county courts. Thus the prosecutorial duties of a municipal attorney do not bar criminal defense practice. The rules do, however, limit such practice.
    In this inquiry the municipal prosecutor is associated with a municipal court judge; hence the exclusion of R. 1:15-4 extends to the entire county where that municipal court is located.
    Accordingly, an association, partnership or employment arrangement between a municipal court judge and a municipal prosecutor from another municipality is permissible provided
the participants, other than the municipal court judge, exclude from their practice all criminal defense work within the county in
which that court is located. Except for the municipal court judge, who is excluded from all criminal defense practice, his associates,
partners, employers or employees in the practice may undertake criminal defense work on matters at issue in counties other than the county in which his court is located, except on such matters as originate in the municipalities served by the judge and by the municipal attorney or prosecutor or as concern accused persons who reside in such jurisdictions.
    The conclusions in the last paragraph of our Opinion 359, supra, are accordingly modified.
    Concerning the second inquiry, we hold that since the proposed appeal concerns events which took place within the county of that
municipal court, and since the original conviction was in a court located in the same county as the court over which that judge presides, under R 1:15-4 the partners or associates of that judge should not accept the appeal.