Assistant County Counsel as
Municipal Prosecutor Assistant
County Counsel Partner of Municipal Counsel
This inquiry poses two questions.
l. Whether it is proper for an attorney to hold the
part-time position of assistant county counsel while his
partner serves as counsel to a municipality within the
same county; and
2. Whether it is proper for an attorney to hold the position of assistant county counsel while also serving as municipal prosecutor of a town within the same county.
The first question is answered by In Re Opinion 415, 81 N.J. 318 (1979), in which the Supreme Court held that "[a]n attorney, his partner or associate may not be counsel to a municipality and to the county in which it is located." This prohibition, of course, would extend to a partnership or association between an assistant county counsel and the attorney for a municipality situated in the same county. The inquirer recognizes as much, but suggests that the issue requires "clarification" in light of the Court's subsequent decision in Perillo v. Advisory Committee on Professional Ethics, 83 N.J. 366 (1980) and our Opinion 489, 108 N.J.L.J. 525 (1981). We disagree and refer the inquirer to In Re Opinion 415, supra, as being dispositive of her question.
The second part of the inquiry, i.e., whether an assistant county counsel may also serve as municipal prosecutor of a municipality in the same county, presents somewhat different considerations. A municipal attorney acts as general counsel to the municipality in the day-to-day conduct of its governmental and business affairs. By contrast, the municipal prosecutor does not deal with the broad spectrum of legal matters which led the Court in Opinion 415 to prohibit association between municipal attorneys and county counsel because "[t]here are too many situations in which the interests of counties and their municipalities may conflict." 81 N.J., at 325. The role of the municipal prosecutor ordinarily is limited to the prosecution of individuals charged with disorderly persons offenses and motor vehicle violations in municipal court. See Opinion 366, l00 N.J.L.J. 290 (1977). So circumscribed a function, in our view, normally would not collide with the legal interests of the county and thus would not preclude partnership or office association between a municipal prosecutor and an assistant county counsel.
In Opinion 489, supra, we recently held that an assistant county counsel could properly represent a municipality within the county in a civil rights suit against it which did not include the county. Far from contravening Opinion 415, as the inquirer suggests, our holding in Opinion 489 was predicated upon a recognition of the difference between a municipal attorney whose wide-ranging duties sooner or later are likely to impinge upon the legal interests of the county, and an attorney engaged by the municipality to perform a specialized legal service which is unlikely to involve the county at all. We think a municipal prosecutor is in the latter category and, subject always to the rule of occasional disqualification in the unusual case (see Perillo v. Advisory Committee on Professional Ethics, supra), we hold that a municipal prosecutor may also serve as an assistant counsel to the county in which the municipality is located.