Link to original WordPerfect Document

                                         102 N.J.L.J. 73
                                        July 27, 1978

ADVISORY COMMITTEE ON PROFESSIONAL ETHICS

Appointed by the New Jersey Supreme Court

OPINION 400

Conflict of Interest
Municipal Prosecutor - Municipal Attorney
Prosecuting and Defending Police Officers

    The inquirers ask whether a municipal prosecutor should act as prosecutor for the State in the municipality where he serves and where the defendant is a police officer or other officer or employee of the municipality and, on the "other side of the coin," whether or not the municipal attorney should represent the municipal police officer who is charged with a disorderly persons offense or an indictable offense arising out of his duties as police officer in the same municipality.
    This Committee held in Opinion 140, 91 N.J.L.J. 805 (1968), 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, the inference being that the municipal attorney could defend a police officer if he were not also involved in prosecuting cases in the municipal court. However, 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 The Township of Edison v. Mezzacca, 147 N.J. Super. 9 (App. Div. 1977), the Appellate Division interpreted N.J.S. 40A 14-165, which requires the municipality to provide a police officer who is a defendant in any action or legal proceeding with "necessary means for the defense of such action or proceeding." The court held that the statutory obligation does not require the municipality to pay counsel chosen by a police officer without the prior agreement of the municipality to do so. The municipality could satisfy its obligation by proffering the services of the municipal attorney "when that attorney can function in that capacity free from potential conflicts of interest" and when he cannot, by proffering the services of an outside attorney, or by coming to an agreement with counsel of the officer's choosing as to services to be rendered and the costs thereof. The charge against the police officers in the case was unlawful arrest and assault, and the court agreed with the trial judge that the municipal attorney was disqualified from representing the police officers because of the possibility of a later disciplinary proceeding by the township in the event of an favorable termination of the litigation. The court also pointed out that the officers would be warranted in questioning the ability of the township attorney to give them full loyalty in connection with their defense. The court ordered the township to retain outside counsel, who, when selected, would owe sole allegiance to the officers.
    It is difficult to conceive of a situation where the municipal attorney would not be in a potential conflict if retained to defend a police officer charged with a disorderly persons offense or an

indictable offense, in view of the fact that usually the municipal attorney advises the municipality in matters concerning the police department, including disciplinary proceedings involving police officers as well as other employees.
    It is, therefore, our opinion that a municipal attorney should not represent a municipal police officer charged with a disorderly persons offense or an indictable offense, and that in such cases
the municipality should follow the mandate prescribed in The Township of Edison v. Mezzacca, supra.
    Furthermore, it is our opinion that it is likewise unethical for the municipal prosecutor to prosecute a police officer in the same municipality. 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 a 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 evil, but must likewise avoid the appearance of evil." The question in Opinion 351 supra, 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 hold 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.

* * *


This archive is a service of Rutgers University School of Law - Camden