105 N.J.L.J. 119
February 7, 1980
Firm Privately Retained for Disorderly
Person Prosecutions - Representing
Defendants in the same Municipal Court
This inquiry presents the following question: Is a law firm
which is retained by a private party to prosecute, and frequently
and regularly prosecutes disorderly persons offenses before a
municipal court, "for and on behalf of the state or municipality"
under R. 7:44(b) barred from representing other defendants before
that same municipal court?
The inquirer's firm is retained by an enterprise located in a municipality to prosecute, in the municipal court of that municipality, complaints relating to disorderly persons offenses which eclair with frequency and regularity in connection with the operation of the enterprise. The firm is not retained by the municipality, but prosecutes the offenses under the authority of
R. 7:4-4(b) because the municipal prosecutor of the municipality "does not appear" in such cases. The inquirer's firm regularly, on each of two days of each month, conducts three or four trials on behalf of the prosecution under the above-described arrangement. Furthermore, it regularly disposes of an unspecified number of additional complaints in such court through failure of the defendants to appear, guilty pleas, dismissals, and the like. Under these facts, we think that the firm may not, with propriety, represent criminal defendants in the municipal court in question. The policy of our Supreme Court is laid down in this area in R. 1:15, most specifically in R. 1:15-3(b). This rule deals with the limitation on practice of attorneys who have intimate connection with the judicial process including municipal judges and prosecutors. For example, an attorney who is "regularly assigned" to a court or judge is subject to the same restrictions on practice as the judge of the court to whom he is assigned. See R. 1:15-2. A municipal attorney is specifically barred from representing defendants in the municipal court of the municipality of which he is attorney. R. 1:15-3(b).
While the inquirer's firm, under a strict interpretation, may arguably not be a municipal attorney, still under the rule giving it authority to act at aisle it is regularly prosecuting the offenses in question "for an on behalf of the state or municipality." R. 7:4-4(b). We think the firm's activities clearly come within the policy of the cited rules and that it should be prohibited from representing defendants in the court in which it frequently and regularly conducts such activities.