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                                             86 N.J.L.J. 361
                                             June 27,1963

ADVISORY COMMITTEE ON PROFESSIONAL ETHICS

Appointed by the New Jersey Supreme Court

OPINION 5

Conflict of Interests
Municipal Prosecutors

    An inquiry has been made by an attorney who asserts that he is serving as the municipal prosecutor in a municipality of this State, which operates under Plan F of the Faulkner Act. That act permits the creation of a law department, whereby different members thereof could be designated to take care of certain particular legal matters for that municipality. The municipality in question has never seen fit to create a law department as such and, as a result, it is functioning with a borough attorney who presumably represents the community generally in all of its legal matters.
    The applicant who seeks our opinion, however, indicates that by virtue of a resolution adopted by his municipality, his function is to represent the State and the municipality in various violations returnable in the municipal court. He indicates that while most of his work generally has to do with traffic violations that are returnable before the municipal court, he also, under his appointment, would have to represent the municipality in any violations of local ordinances.
    The question that he presents is whether it is proper for him, inasmuch as he is municipal prosecutor, to represent a client with an application before the board of adjustment, planning board or the municipal council of his municipality.

    It is the opinion of the Committee that an attorney who serves as a municipal prosecutor is serving as an attorney for the municipality and should be prohibited from appearing before the board of adjustment, planing board or mayor and council representing a personal client, for in a situation such as is presented here, there obviously would be a conflict of interest.
    It follows that if there were any violation of the zoning or other municipal ordinances or any claim for penalties suggested under any regulations of the board of adjustment, planning board or mayor and council, or any subdivision thereof, this municipal prosecutor would be compelled, by virtue of his appointment, to present the municipality's point of view before the municipal court.
    The Canons of Professional Ethics are replete with language which would justify without question the conclusion that the applicant's conduct in appearing for personal clients before these municipal subdivisions would obviously be improper.
    See also Opinion 4 of this Committee also filed on June 14, 1963.
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