87 N.J.L.J. 610
September 24, 1964
Conflict of Interest
Legal Assistant, Municipal Prosecutor
An attorney inquires about the ethics of his conduct in the
He holds the part-time office of legal assistant to the department of public safety in one of the municipalities of this State, and he acts as the municipal prosecutor, having been assigned to that position by the director of public safety of the municipality. He also has a client who conducts a business in the municipality, who has been convicted in the local municipal court for an alleged violation of the municipal zoning ordinance. Because of the official position which the attorney maintains, he did not
participate in the proceedings in the municipal court, either on behalf of the municipality, which was represented by a member of the law department, or on behalf of his client, who was the defendant in that proceeding. The client on that occasion was represented by other counsel. He was convicted in the municipal court and now desires to appeal the conviction to the county court, and has requested the inquiring attorney to represent him before the county court, where obviously it will be a trial de novo. He inquires whether it would be proper and ethical for him to represent his client in the county court proceedings.
This Committee has on many occasions given consideration to inquiries pertaining to conflicts of interests, where municipal attorneys and municipal prosecutors were involved. See N.J. Advisory Committee on Professional Ethics, Opinion 4, 86 N.J.L.J. 357 (1963); Opinion 5, 86 N.J.L.J. 361 (1963); Opinion 8, 86 N.J.L.J. 718 (1963); Opinion 18, 86 N.J.L.J. 734 (1963); Opinion 19, 86 N.J.L.J. 734 (1963); Opinion 20, 86 N.J.L.J. 734 (1963); Opinion 24, 87 N.J.L.J. 19 (1964). All of these involved Canon 6, entitled Adverse Influences and Conflicting Interests.
We have, in these various opinions, clearly indicated that where an attorney serves as a municipal prosecutor he is, in effect, serving as an attorney for the municipality and should in no way be permitted to appear in any proceeding or in any court against the municipality. We have maintained that an attorney, representing a municipality in such a capacity as municipal prosecutor, has as his client the entire municipality. For him to appear in another court where in effect he is challenging the actions of his own municipality, which obviously is his client, would be highly improper.
There have been many instances where appeals have been instituted in the county court, questioning the determination of the municipal court or matters of procedure therein. Items of filing, or the lack thereof, on time are but a few of the instances where county courts have found it desirable to refer appeals back to the municipal court to straighten out technical defects, so that in those instances, if not in others, there seems to be a continuing relationship between the matter before the municipal court and the case on appeal to the county court. The public would never understand how it would be possible for a municipal prosecutor, merely by abstaining from proceeding in a case where his personal client was involved, to find himself questioning the determination of the municipal court in the same matter, with obviously the same facts, before the county court. To encourage such a practice would certainly be to encourage the violation of Canon 6. As we stated before, in Opinion 19, 86 N.J.L.J. 734 (1963):
A lawyer who is an employee should not take employee cases against the company.
The same opinion (No. 289) is found in Drinker, Legal Ethics 298 (1953). Also see Drinker, Legal Ethics 118 (1953) et seq. There, various incidents are described in greater detail which make it obvious that the attorney should not be permitted to do that which he has suggested in this inquiry. At page 119 the language is so positive as to definitely state that a prosecutor may not change sides.
Considering all that has been said in this opinion, this Committee feels that the contemplated action of the attorney would obviously be improper.