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                                            95 N.J.L.J. 481
                                            May 18, 1972


Appointed by the New Jersey Supreme Court


Conflict of Interests
Municipal Prosecutor -
Assigned to Public Defender Pool

    We are asked to advise whether or not the conflict of interests rule bars a municipal prosecutor from serving as a member of a pool of attorneys assigned cases by the office of the public defender.
    The inquirer asserts that the opinion in State v. Zold, 105 N.J. Super. 194 (Law Div. 1969), affirmed o.b. 110 N.J. Super. 33 (App. Div. 1970), holds that there is no conflict of interest in such a situation. In that case a defendant, convicted of robbery, argued that he was denied effective assistance of assigned counsel before the county court because the assigned attorney from the office of the public defender was a member of a municipal law department in that county and alternated in the role of municipal prosecutor. The court held that the proofs showed no constitutional deprivation of effective assistance of counsel and that the assigned attorney's role of municipal prosecutor did not constitute proof that the defendant was denied effective assistance of counsel. The court interpreted R. 1:26-5(c), then incorporated in R. 1:26-3(c) effective January 2, 1963, as indicating that the Supreme Court had not intended to prohibit a municipal attorney from defending an accused in the county or superior court for the reason that the Supreme Court would have said so if it so intended.
    Since that decision the rule has been amended as R. 1:15-3(b); it now provides:
            but he may represent a defendant in a joint municipal court if the defendant resides and the offense was allegedly committed in a municipality for which he is not the attorney.

    Before that rule change, in our Opinion 53, 87 N.J.L.J. 610 (1964) (not referred to in State v. Zold, supra), we held it improper for a municipal attorney to represent a private client in the county court on an appeal from conviction in the municipal court of that municipal prosecutor. See our Opinion 138, 91 N.J.L.J. 805 (1968), and our Opinion 182, 93 N.J.L.J. 492 (1970).
    We interpret R. 1:15-3(b) to prohibit the municipal prosecutor from representing an equalized before the county court where the offense originated in, or accused resided in, the municipality for which he is the prosecutor.
    There remains the question whether a municipal prosecutor may represent an accused before the county court when the accused resides outside of or the offense was committed outside of the municipality of the municipal prosecutor. We hold that he may. The role of municipal prosecutors in New Jersey varies. Some courts reportedly require him in every case. Before the county courts his appearance is limited to cases involving municipal ordinances. In all counties the municipal prosecutor and the county prosecutor have occasion to confer. The county prosecutors advise the municipal prosecutors as to when it is appropriate to deal with certain offenses at the local level. We do not regard this activity of municipal prosecutors as precluding their appearance in the county court as defense counsel.
    Accordingly, it is our opinion that where the offense occurred outside of the municipal prosecutor's municipality and the accused resided outside of it, the municipal prosecutor may represent that accused both in another municipality and before the county court.

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