102 N.J.L.J. 73
July 27, 1978
Conflict of Interest
Municipal Prosecutor - Municipal Attorney
Prosecuting and Defending Police Officers
The inquirers ask whether a municipal prosecutor should act as
prosecutor for the State in the municipality where he serves and
where the defendant is a police officer or other officer or
employee of the municipality and, on the "other side of the coin,"
whether or not the municipal attorney should represent the
municipal police officer who is charged with a disorderly persons
offense or an indictable offense arising out of his duties as
police officer in the same municipality.
This Committee held in Opinion 140, 91 N.J.L.J. 805 (1968), that no member of the city's law department who prosecutes cases in the municipal court should be permitted to defend a police officer in the same court, the inference being that the municipal attorney could defend a police officer if he were not also involved in prosecuting cases in the municipal court. However, in Opinion 351, 99 N.J.L.J. 798 (1976), we held that a municipal attorney should not represent the municipal police officer on a probable cause hearing in the municipal court. In The Township of Edison v. Mezzacca, 147 N.J. Super. 9 (App. Div. 1977), the Appellate Division interpreted N.J.S. 40A 14-165, which requires the municipality to provide a police officer who is a defendant in any action or legal proceeding with "necessary means for the defense of such action or proceeding." The court held that the statutory obligation does not require the municipality to pay counsel chosen by a police officer without the prior agreement of the municipality to do so. The municipality could satisfy its obligation by proffering the services of the municipal attorney "when that attorney can function in that capacity free from potential conflicts of interest" and when he cannot, by proffering the services of an outside attorney, or by coming to an agreement with counsel of the officer's choosing as to services to be rendered and the costs thereof. The charge against the police officers in the case was unlawful arrest and assault, and the court agreed with the trial judge that the municipal attorney was disqualified from representing the police officers because of the possibility of a later disciplinary proceeding by the township in the event of an favorable termination of the litigation. The court also pointed out that the officers would be warranted in questioning the ability of the township attorney to give them full loyalty in connection with their defense. The court ordered the township to retain outside counsel, who, when selected, would owe sole allegiance to the officers.
It is difficult to conceive of a situation where the municipal attorney would not be in a potential conflict if retained to defend a police officer charged with a disorderly persons offense or an