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ADVISORY COMMITTEE ON PROFESSIONAL ETHICS

Appointed by the New Jersey Supreme Court

OPINION 690

State Police Officer Acting
as Municipal Prosecutor

    The inquirer asks whether the Rules of Professional Conduct permit a lawyer who is a member of the New Jersey State Police to act as a municipal prosecutor in a municipality that employs its own full-time police force. For the reasons set forth below, we conclude that this dual service raises an appearance of impropriety within the meaning of RPC 1.7(c)(2), and would preclude a prosecutor from exercising independent professional judgment in criminal cases as contemplated by RPC 3.8.
    Counsel for governmental entities are held with particular vigor to standards of propriety and the absence of conflict of interests. “The governing principle applied to inquiries in this area is that counsel for the public must conduct themselves and their practice so as to avoid the appearance of impropriety.” In re Opinion 415, 81 N.J. 318, 321 (1979). The dispositive test is whether an “informed and concerned citizen,” id. at 325, could reasonably find an appearance of impropriety in this dual role of municipal prosecutor and law enforcement officer.See footnote 1 1 We have not addressed the precise issue presented by this inquiry in a published opinion, although we have, in ACPE Docket No. 65-84B (October 31, 1984) and ACPE Docket No. 10-90C (March 2, 1990), issued unpublished letter determinations that such dual service was permissible. For the reasons stated in this opinion, we overrule those prior determinations.
    In the most closely analogous published opinion, we determined in Opinion 672, 133 N.J.L.J. 1371, 2 N.J.L. 535 (1993), that a member of a local police department could not simultaneously serve as municipal prosecutor in the same town. We noted that:
    Police officers bring charges and testify against defendants in the municipal court. As municipal prosecutor, the inquirer is obligated to refrain from prosecuting a charge that she knows is not supported by probable cause. RPC 3.8(a). Therefore, the issue is whether an appearance of impropriety arises from inquirer's handling of matters in which her associates, and in some cases subordinates, are involved... .

    Under ordinary circumstances, the municipal prosecutor frequently works with the police officers in the municipality. The manner in which facts are presented would be the decision of the prosecutor and frequently the manner of presentation can make a significant difference in the result. Moreover, 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. Here the municipal prosecutor is literally “on the same team.” Therefore, an informed citizen could reasonably believe that the exercise of discretion in evaluating and processing charges where colleagues and fellow officers are the complainants would be seriously inhibited by the on-going relationship which exists between the municipal prosecutor and her fellow police officers. While there may be no prima facie conflict of interest, the specter of an appearance of impropriety so permeates this situation as to preclude the dual service.

    There are two arguable distinctions between the facts of Opinion 672 and the present inquiry. First, the inquirer, as an offer of the State Police, is not, strictly speaking, a co-worker, superior, or subordinate of municipal police officers who are likely to be called upon the testify in municipal court, and thus would not present the same type of conflict described in Opinion 672. Second, the fact that the municipality in question has its own full-time police force means that the occasions in which an officer of the State Police, with whom the inquirer clearly does have a direct working relationship, is called to testify in a proceeding in the municipal court in question would be reduced, thus mitigating the possibility of conflict.
    Upon careful reflection, we do not believe that either distinction is sufficient to merit a different conclusion from that reached in Opinion 672. Regardless of the color of the uniform they wear, the public believes that law enforcement officers, of whatever type, are “on the same team” as prosecutors. While it is true that this perception of interdependence would probably exist to some extent regardless of whether the prosecutor was himself a uniformed law enforcement officer, it creates an atmosphere that warrants special caution against any further intrusions into public confidence in the independent judgment of the prosecutor, free from any biases that might be created by the prosecutor's own personal interests.
    A municipal prosecutor is regularly called upon to assess the credibility of evidence offered by law enforcement officers in order to make an independent determination, as required by RPC 3.8, as to whether probable cause exists for prosecution. When the prosecutor is himself a uniformed and armed member of the police force (whether state or local), we think the public might reasonably conclude that he could not properly assess the credibility of brother or sister police officers with the required independence. While it may be true that there is no direct chain of command between a state police trooper and a municipal police officer, they perform essentially identical functions within their respective geographical jurisdictions, and have equivalent professional interests in advocating for the criminal prosecution of defendants they arrest. See generally N.J.S.A. 53:2-1 (powers and duties of State Police in general). In appropriate circumstances the state and local police forces cooperate and coordinate their activities. Id. It might therefore be asking too much for a police officer, acting as prosecutor, to question the veracity, conduct or expertise of another police officer. More to the point for purposes of RPC 1.7(c)(2), public confidence in the independent professional judgement of a prosecutor would be undermined by such dual service.

    Moreover, although the instances in which an officer of the State Police is called to testify in municipal court might be somewhat less frequent where the municipality employs a full-time local police department, there still exists a significant possibility that another State Police trooper would be a witness or complainant in a matter assigned to the municipal prosecutor. Officers of the State Police have statewide jurisdiction, and have not only the authority, but indeed the obligation, to exercise their law enforcement function anywhere in the State. The State Police have primary patrol responsibilities for the State's major highways, even within the geographical confines of municipalities that have their own police force. If a State Police officer were to be a complaining witness in a municipal court where another member of the State Police was prosecutor, Opinion 672 would obviously apply, mutatis mutandis, and the prosecutor would then be barred from representing the State.
    We have considered whether it would be possible to allow the inquirer to accept appointment as a municipal prosecutor as a general matter and address the need for recusal on a case-by-case basis. The Supreme Court has on occasion favored such an individualized inquiry into the need for recusal over a blanket disqualification from service. See In re Opinion 653, 132 N.J. 124 (1993) (partners in a law firm may serve simultaneously as County Counsel and as counsel to County Vocational School Board); Petition for Review of Opinion 552, 102 N.J. 194 (1986) (rejecting per se rule prohibiting attorney from presenting governmental entity and entity's officials or employees that are co-defendants in civil rights action and permitting such representation absent actual conflict of interest). We believe those cases are distinguishable, however, in that the potential for conflict, or the appearance of conflict, was palpably less likely than in the facts posed by the current inquiry. Case-by-case consideration of the need for recusal would, of course, do nothing to alleviate the adverse perceptions described above that are created when a municipal police officer is a witness or complainant. Even if we were to limit the need for recusal to situations in which another State Police officer is the complainant or witness, we believe the public interest would be disserved through such an ad hoc approach.
     For these reasons, we respond to this inquiry by holding that an active member of the Division of State Police may not accept appointment as a municipal prosecutor. Any officer of the State Police who currently holds an appointment as municipal prosecutor should terminate such service within a reasonable time not to extend beyond the end of the current calendar year.

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Footnote: 1    1

Although there has been a recent New Jersey Supreme Court Administrative Hearing regarding the continued vitality of the “appearance of impropriety” rule, the Court has decided not to alter it pending further review. Administrative Determination of the Supreme Court of New Jersey In re Administrative Hearing on RPC 1.7(c)(2), February 15, 2000. We therefore apply RPC 1.7(c)(2) according to its terms. We note, however, that the concerns raised about the effectiveness of RPC 1.7(c)(2) have usually been in the context of private civil litigation. Here, we deal with a government-employed criminal prosecutor, in which the importance of avoiding even the appearance of impropriety is arguably greater (and the difficulties of application less) than for private counsel in civil cases.

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