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                                        120 N.J.L.J. 251
                                        July 30, 1987


Appointed by the New Jersey Supreme Court


Partner of Municipal Court Judge
Processing Forfeiture Actions on
Behalf of County Prosecutor -
Application of R. 1:15-l(b)

    The inquirer is a member of a law partnership consisting of two lawyers; namely, himself and his partner, who was recently appointed a municipal judge. For approximately five and one half years prior to the date that his partner became a municipal judge, the inquirer also served as a part-time county counsel in the county in which the partnership maintained its law offices. Upon his partner being appointed municipal judge, the inquirer resigned as county counsel pursuant to and by reason of holding of this Committee in Opinion 516, 111 N.J.L.J. 481 (1983). During the course of his duties as county counsel, he was charged with the processing of several civil actions pursuant to N.J.S.A. 2C:64-1, et seq. on behalf of the county prosecutor's office for the forfeiture of motor vehicles, monies, real estate and other con traband seized by law enforcement officers as a result of arrests based upon illegal activities. He further states that many of the arrests and seizures upon which these civil actions were based were made in the municipality in which his law partner now serves as municipal court judge. He anticipates that, should he be engaged as an independent attorney to represent the county prosecutor in the filing of the civil actions at this time, many of such actions would be based upon arrests and seizures made in the very same municipality in which his law partner serves as municipal judge. Additionally, it appears that bail is often fixed through the municipal court in which his law partner serves as judge. We are further advised by the inquirer that the municipal judge can hold probable cause hearings but that, in his opinion, this is unlikely to occur in view of the fact that due to the speedy trial procedures utilized in that county, the municipal court has not held such hearings to date. The inquirer also states that although he would not be involved in the handling of the criminal prosecutions, he would have access to police reports filed concerning the arrests and receipts for property seized. His involvement, therefore, other than the matter of access to the files as set forth herein, would be the matter of initiating and processing the civil actions of forfeiture for the purpose of obtaining a judgment therein.
    The inquirer poses the following question:
    Whether the law partner of a part-time municipal judge of a municipality may represent the county prosecutor of the county in which the municipality is located as plaintiff's counsel in civil actions to forfeit contraband seized from automobiles stopped by law enforcement offices in such municipality pursu ant to N.J.S.A. 2C:64-1 et seq.?

    The inquirer cites opinions which he feels are analogous to the inquiry; namely our Opinion 359, 99 N.J.L.J. 1153 (1976), Opinion 466, 106 N.J.L.J. 518 (1980), and Opinion 516, supra., and stresses throughout his memorandum the fact that the actions which he would be instituting are civil in nature.

    R. 1:15-l(b) provides in pertinent part as follows:
    Judges of Municipal Courts. An attorney who is a judge or acting judge of a municipal court shall not practice in any criminal, quasi-criminal, or penal matter, whether judicial or administrative in nature, except to perform the official duties of a municipal attorney of another municipality ...

    Black's Law Dictionary defines "penal" as "punishable; inflicting a punishment; containing a penalty, or relating to a penalty." The definition of "penal action" reads, in part, as follows:
    In its broadest context, it refers to criminal prosecution. More particularly, it refers to a civil action in which a wrongdoer is subject to a fine or penalty payable to the aggrieved party ...

Our own courts have given an equally expansive definition:

    The word 'penal' is inherently a much broader term than 'criminal' since it pertains to any punishment or penalty and relates to acts which are not necessarily delineated as criminal. State v. Lowry, 95 N.J. Super. 307, 320 (1967).

    Therefore, we are of the opinion that the various matters which could be assigned, although relating to civil actions pursuant to the statute, basically are penal in nature and that the prohibition contained in R. 1:15-l(b) applies with equal effect to the inquirer and his law partner. See R. 1:15-4, which provides, in effect, that the limitation imposed on the practice of law by an attorney shall also extend to an attorney who is partner, employer, employee, or an office associate or shareholder in a professional corporation in which the attorney practices. The limitation extends only to the county in which the court of the judge is located.

    Additionally, we are concerned with the "appearance of impropriety." We are faced with a partnership in which one of the partners is a judge involved in the administration of the criminal justice system, who may or may not have acted in the particular matter which resulted in the forfeiture for which the civil action has been brought but, nevertheless, will participate in the fees generated by his partner with reference to the civil action stemming from either a criminal action or a seizure as the result of a possible or probable violation of the criminal laws. It appears to us that when faced with such a set of facts, the average lay person would likely draw a conclusion of impropriety.


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