November 6, 1969
Conflict of Interest - Assistant
Prosecutor Suing Local Police
This Committee has received the following inquiry:
May an assistant county prosecutor be the
attorney for the plaintiffs in a civil suit
against a municipality of the same county, its
police department, and individual police
officers of the department, sounding in false
imprisonment, trespass, and violation of civil
rights, where all causes of action are based
on a raid conducted by the said police
department, although the raid took place prior
to the inquirer's being appointed assistant
It is the opinion of the Committee that the inquirer, who is an assistant prosecutor for the county in which the alleged offense took place, may not represent the plaintiffs in a civil action against a municipality, its police department and individual members of the same located in the county for which he is an assistant prosecutor.
This Committee has held on many occasions that municipal attorneys, municipal prosecutors, school board attorneys, attorneys for planning boards, zoning boards, etc., may not take positions on behalf of private clients in opposition to the interests of the governmental authorities which they represent. It is obvious from the inquiry that it will be the duty of the inquirer on behalf of his private clients to directly attack the legality of the actions of a law enforcement agency of one of the municipalities in the county for which he is an assistant prosecutor. To do so would, in our opinion, immediately raise a question of impropriety in the minds of the general public.
His duty in the first instance is that of prosecution of crime committed within the county, for which he will require the complete cooperation of the police departments of the municipalities within the county. The general public interest requires that he should in no way endanger this public interest by alienating or creating hostility with the very people upon whom he must rely for the protection of the general public interest. See American Bar Association, Code of Professional Responsibility, EC 8-8, including footnote 11.
It is the opinion of this Committee that there is an inescapable conflict of interest between the duty an assistant prosecutor owes to his office and the general public and that of representing private clients against local law enforcement agencies. We therefore conclude that it would be improper for him to do so.