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                                         98 N.J.L.J. 809
                                        September 25, 1975


Appointed by the New Jersey Supreme Court



Conflict of Interest
Municipal Prosecutor Defending
Driver before Motor Vehicle Director

    The inquirer, a municipal prosecutor in Middlesex County, asks whether it would constitute a conflict of interest under DR 5-105 for him to represent a private client before the Director of the Division of Motor Vehicles in a driver license revocation hearing pursuant to N.J.S.A. 39:4-50.4. He states that the proposed client is a resident of another county and that the alleged offense occurred in another county.
    As municipal prosecutor, the inquirer has occasion to request records and some advice from the Division of Motor Vehicles. While he has not yet been requested to represent his municipality at a hearing under N.J.S.A. 39:4-50.4, he anticipates that he may be requested to do so in the future.
    R. 1:15-3(b) and (c) furnish a more specific guide than DR 5-105. They provide:
            (b) Municipal Attorneys and Members of Governing Bodies. A municipal attorney of any municipality shall not represent any defendant in the municipal court thereof, except to perform his official duties, 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.

            (c) Other Attorneys Representing Public Bodies. Paragraphs (a) [concerning sheriffs and county prosecutors] and (b) of the rule shall not be deemed to exhaust the limitations on practice necessitated by a conflict of interest on the part of an attorney representing a public body, agency or officer.

    Our Opinion 239, 95 N.J.L.J. 481 (1972), is even more

pertinent. There it was said:

            We interpret R.1: 15-3(b) to prohibit the municipal prosecutor from representing an accused 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 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.

    That being so, under the circumstances presented by the inquirer, we see no impropriety in the representation by a municipa1 prosecutor of a private client before the Director of the
Division of Motor Vehicles in a revocation hearing pursuant to N.J.S.A. 39:4-50.4, provided the offense did not occur in the prosecutor's municipality.

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