8 N.J.L. 972
156 N.J.L.J. 434
May 3, 1999
Lay Security Personnel Prosecuting
Complaints in Municipal Court
This Opinion is occasioned by the Committee's recent consideration of a grievance concerning the alleged unauthorized practice of law by security personnel on behalf of various supermarkets, department stores and other retail establishments in municipal court. The grievance alleged that security personnel were permitted to appear as private prosecutors and prosecute shoplifting and other complaints on behalf of their employers in a particular municipal court.
During the course of its investigation, the Committee corresponded with the judge of the municipal court in which these activities allegedly took place. The judge confirmed that security personnel appeared as complaining witnesses and were permitted to prosecute the complaints without counsel.
According to the judge, all Rules of Evidence and Rules of Court were followed. Persons appearing on behalf of the retail establishments clearly identified themselves as being security personnel, bookkeepers or employees of the retail establishments and did not represent themselves to be attorneys or otherwise hold themselves out as licensed to engage in the practice of law. The judge queried whether a private attorney retained by the establishment to prosecute shoplifting and bad check cases would be perceived by the public as being any more impartial than the security personnel. It was the judge's observation that this was a very expeditious procedure.
This Committee has, in the past, been asked to comment as to the propriety of non-attorneys appearing in behalf of corporations before other public entities. See Opinion 13, 98 N.J.L.J. 27 (1975) (corporate appearance before zoning board of adjustment other than through an attorney); Opinion 16, 98 N.J.L.J. 568 (1975) (corporate appearance before a planning board other than through an attorney); and Opinion 19, 99 N.J.L.J. 505 (1976) (corporate appearances before zoning boards of adjustment and planning boards other than through an attorney). This is the first time the Committee has been called upon to consider the propriety of corporations privately prosecuting matters in the municipal courts.
R. 7:6-2(a)(2) permits a defendant corporation, partnership, or unincorporated association to enter a plea or otherwise appear by an agent or officer provided the appearance is consented to by the named party defendant and the court finds that the interest of justice does not require the appearance of counsel. R. 7:8-7(a) provides that a defendant corporation, partnership, or unincorporated association shall appear by its attorney unless an appearance on its behalf by an officer or agent has been permitted pursuant to R. 7:6-2(a)(2), supra. It must be emphasized that these Rules concern corporations, partnerships, or unincorporated associations defending themselves. The issue before this Committee deals not with such entities defending themselves, but rather with their prosecuting matters in their own behalf.
R. 7:8-7(b) provides that
The Attorney General, county prosecutor, or county counsel, as the case may be, may appear in any municipal court in any action on behalf of the government and conduct the prosecution either on the court's request or on the request of the respective public official. The court may also, in its discretion and in the interest of justice, direct the municipal prosecutor, if there is one, to represent the government or may permit a private prosecutor to represent the government. A prosecutor may, however, be so permitted only if the court has first reviewed the attorney certification submitted on a form prescribed by the Administrative Director of the Courts, ruled on the contents of the certification, and granted the attorney's motion to act as a private prosecutor for good cause shown. The finding of good cause shall be made on the record.
Although private prosecutions are quite frequently the only way in which disorderly persons offenses may be brought before a judge, they pose a number of risks to a defendant's right to a fair trial. See State of New Jersey v. Kinder, 701 F. Supp. 486, 491 (D.N.J. 1988). The appearance by an attorney to prosecute a matter for a private complainant does not, in and of itself, eliminate these risks. Indeed, in State v. Storm, 141 N.J. 245 (1995), the Supreme Court recognized that a private prosecutor's relationship with a complainant in a related civil matter may affect his or her assessment of probable cause in a municipal court prosecution. The Court ultimately concluded that private prosecutions may so undermine the public's confidence in municipal court proceedings that they may not be undertaken absent certain specified protections. Id. at 254.
The risks to a defendant's right to a fair trial are substantially greater when the private prosecutor is not a lawyer. RPC 3.8, "Special Responsibilities of a Prosecutor," details certain active steps a prosecutor must take to ensure fair treatment of defendants. Among other duties, the prosecutor in a criminal case must "(a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause; ... and (d) make timely disclosure to the defense of all evidence known to the prosecutor that supports innocence or mitigates the offense." Lay prosecutors are not subject to the Rules of Professional Conduct governing attorneys and may not be aware, capable of, or interested in carrying out these duties.
As part of its review of this issue, the Committee also made inquiry of the Supreme Court Committee on Municipal Courts to ascertain whether, in its opinion, the prosecution of matters by lay security personnel was permissible. That committee concurred with the determination we now make that the security personnel were engaged in the unauthorized practice of law when they prosecuted disorderly persons offenses.
The conclusion of this Committee is clear and unequivocal. In all matters in which a corporation, partnership, or unincorporated association is the complaining party in a municipal court, the matter may be prosecuted only by an attorney. The prosecution or presentation of such matters by security personnel, bookkeepers and other lay employees on behalf of their employers constitutes the unauthorized practice of law. If the municipality does not have a municipal prosecutor, or if the prosecutor declines to prosecute the matter, the municipal court must require that private counsel be retained to prosecute the matter, subject to compliance with the requirements of R. 7:8-7(b).
The Committee notes that new forms of business entities such as limited liability companies and limited liability partnerships are not to be distinguished by the form of their existence or status and that they, too, shall be subject to the same limitations as those imposed upon corporations, partnerships and unincorporated associations.