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101 N.J.L.J. 417
May 4, 1978
ADVISORY COMMITTEE ON PROFESSIONAL ETHICS
Appointed by the New Jersey Supreme Court
OPINION 394
Conflict of Interest: Municipal
Prosecutor Prosecuting Police Officer
The inquirer asks whether a municipal prosecutor should act as
prosecutor for the State in a municipality where he serves as
prosecutor and where the defendant is a police officer or other
officer or employee of the same municipality.
This Committee previously decided the "other side of the coin"
in Opinion 140, 91 N.J.L.J. 805 (1968), in which it was held that
no member of the city's law department who prosecutes cases in the
municipal court should be permitted to defend a police officer in
the same court. In Opinion 351, 99 N.J.L.J. 798 (1976), we held
that a municipal attorney should not represent the municipal police
officer on a probable cause hearing in the municipal court. In both
instances, therefore, the police officer had the statutory right to
engage independent counsel at the cost and expense of the
municipality.
We are now asked whether the municipal prosecutor may
prosecute the case against the police officer. If it is unethical
for the municipal prosecutor to prosecute a police officer of the
same municipality, it will then be necessary for the municipality
to engage a special prosecutor to prosecute the police officer and
to engage independent counsel to defend the police officer.
The inquirer persuasively points out that the public believes
that the prosecutor and the police are, as a practical matter, "on
the same team" and inevitably develop a close working relationship
with each other. Conceivably, the public would have the tendency to
believe that the municipal prosecutor would be less than zealous in
his prosecution of a municipal police officer. In Opinion 88, 89
N.J.L.J. 49 (1966), we pointed out that the profession "must avoid
not only all evil, but must likewise avoid the appearance of evil."
The question in Opinion 351, 99 N.J.L.J. 798 (1976), was
whether a municipal attorney might represent a municipal police
officer on a probable cause hearing in the same municipal court.
The opinion took for granted without raising a question that the
assistant municipal prosecutor of the municipality would present
the State's case against the police officer. The question as to the
propriety of the municipal prosecutor presenting the State's case
having now been directly raised, we herewith decide that it is
unethical for the municipal prosecutor to act as prosecutor for the
State in a case in the municipality where he serves as prosecutor
and where the defendant is a police officer or other officer or
employee of the same municipality. We leave it to the discretion of
the municipality as to whether or not to engage and pay for
independent counsel as special prosecutor or to request the county
to supply a special prosecutor so as to eliminate the double
expense which would ensue if the municipality must engage
independent counsel to defend the police officer and pay a special
prosecutor to prosecute the police officer.
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