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                                         86 N.J.L.J. 718
                                        December 19, 1963

            

ADVISORY COMMITTEE ON PROFESSIONAL ETHICS

Appointed by the New Jersey Supreme Court

OPINION 8

Conflict of Interest
Municipal Prosecutors

Question No. 1

    By virtue of previous client-attorney relationship, attorney sought to be excused as municipal prosecutor in a disorderly case involving client and his wife. The request was granted by the municipal court judge. The question now presented is whether it is proper for the attorney to represent the client with regard to the preparation of a separation agreement with the wife's attorney, at the instigation of the latter.
    The inquirer appears to have had no personal connection with the investigations of the disorderly case, or its prosecution and, in the opinion of the Committee, it does not appear that the representation now sought in the inquiry is in violation of the Canons of Professional Ethics.

Question No. 2

    An attorney is serving as the municipal prosecutor in attendance regularly at morning sessions of the municipal court, twice a week. With the exception of drunken driving and death by auto matters, all traffic cases are normally scheduled for Monday evening sessions of the court, at which this attorney does not appear as the municipal prosecutor. The inquiry is whether it is proper for the attorney to appear and represent a client involved in an accident, where the charge is returnable at one of the Monday evening sessions of the court.
    An attorney who serves as a municipal prosecutor is serving as the attorney for the municipality and should be prohibited from appearing against the municipality in any court, regardless of the time of day or night or the day of the week.
    An attorney should not only avoid all impropriety, but should likewise avoid the appearance of impropriety.
    It is the opinion of the Committee that an attorney who is employed as a municipal prosecutor who accepts employment, "under circumstances detailed in the inquiry evinces lack of appreciation of general ethical principles, overturns considerations of sound public policy, breaches the specific inhibitions of Canon 36 and thereby subjects himself to just public criticism." A.B.A. Committee on Professional Ethics and Grievances, Opinion 135 (1935).
    See also Opinions 4 and 5 of this Committee filed on June 14, 1963.

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