131 N.J.L.J. 834
July 13, 1992
1 N.J.L. 1043
July 13, 1992
Conflict of Interest: Municipal
Attorney Serving Same Municipality
as Municipal Prosecutor
The inquirer asks whether a municipal attorney may also serve
the same municipality as municipal prosecutor.
This Committee has issued numerous opinions on the ethical concerns affecting the representation of two or more municipal bodies by the same attorney or by partners or associates of the same law firm. We have consistently held that where there is or may be a conflict of interest in a particular situation, the same attorney should not undertake to represent two public bodies. Opinion 415, 103 N.J.L.J. 38 (1979), aff'd In re Opinion No. 415, 81 N.J. 318 (1979). In many circumstances we have held dual representation to be improper.
In Opinion 452, 105 N.J.L.J. 353 (1980), aff'd In re Professional Ethics Opinion, 87 N.J. 45 (1981), we held that even in the absence of a statutory (N.J.S.A. 40:55D-71) prohibition, it would be improper for a municipal prosecutor to be the partner of the planning board attorney in the same municipality. Similarly, in Opinion 366, 100 N.J.L.J. 290 (1977), we held that it would be improper for a municipal prosecutor to be the partner of an attorney for the zoning board of adjustment in the same municipality. The rationale for these opinions was that the attorney for either board might advise it on matters that are relevant to proceedings in which the municipal prosecutor might become involved. In re Professional Ethics Opinion 452, supra, 87 N.J. at 51.
The rationale is no less compelling in the present inquiry. Municipal attorneys, among other things, draft ordinances enforceable in municipal court. They also render advice on myriad matters that are or may become relevant to proceedings in which the municipal prosecutor might become involved. Might a municipal court defendant or, for that matter, an "informed and concerned private citizen," In re Opinion No. 415, supra, 81 N.J. at 325, reasonably believe that the municipal prosecutor might fail to bring independent judgment to bear in evaluating an alleged violation of an ordinance? An affirmative answer is, in our opinion, "more than a fanciful possibility." Higgins v. Advisory Comm. on Professional Ethics, 73 N.J. 123, 129 (1977); In re Professional Ethics Opinion 452, supra, 87 N.J. at 52.
Where, as here, the same attorney serves as municipal attorney and municipal prosecutor, an informed citizen could conclude that the priorities of one or both offices may be compromised. Consequently, we hold that a municipal attorney may not serve the same municipality as municipal prosecutor.