State Police Officer Acting
as Municipal Prosecutor
The inquirer asks whether the Rules of Professional Conduct
permit a lawyer who is a member of the New Jersey State Police to
act as a municipal prosecutor in a municipality that employs its
own full-time police force. For the reasons set forth below, we
conclude that this dual service raises an appearance of impropriety
within the meaning of RPC 1.7(c)(2), and would preclude a
prosecutor from exercising independent professional judgment in
criminal cases as contemplated by RPC 3.8.
Counsel for governmental entities are held with particular vigor to standards of propriety and the absence of conflict of interests. The governing principle applied to inquiries in this area is that counsel for the public must conduct themselves and their practice so as to avoid the appearance of impropriety. In re Opinion 415, 81 N.J. 318, 321 (1979). The dispositive test is whether an informed and concerned citizen, id. at 325, could reasonably find an appearance of impropriety in this dual role of municipal prosecutor and law enforcement officer.See footnote 1 1 We have not addressed the precise issue presented by this inquiry in a published opinion, although we have, in ACPE Docket No. 65-84B (October 31, 1984) and ACPE Docket No. 10-90C (March 2, 1990), issued unpublished letter determinations that such dual service was permissible. For the reasons stated in this opinion, we overrule those prior determinations.
In the most closely analogous published opinion, we determined in Opinion 672, 133 N.J.L.J. 1371, 2 N.J.L. 535 (1993), that a member of a local police department could not simultaneously serve as municipal prosecutor in the same town. We noted that:
Police officers bring charges and testify against defendants in the municipal court. As municipal prosecutor, the inquirer is obligated to refrain from prosecuting a charge that she knows is not supported by probable cause. RPC 3.8(a). Therefore, the issue is whether an appearance of impropriety arises from inquirer's handling of matters in which her associates, and in some cases subordinates, are involved... .
Under ordinary circumstances, the municipal prosecutor frequently works with the police officers in the municipality. The manner in which facts are presented would be the decision of the prosecutor and frequently the manner of presentation can make a significant difference in the result. Moreover, the public believes that the prosecutor and the police are, as a practical matter, on the same team and inevitably develop a close working relationship with each other. Here the municipal prosecutor is literally on the same team. Therefore, an informed citizen could reasonably believe that the exercise of discretion in evaluating and processing charges where colleagues and fellow officers are the complainants would be seriously inhibited by the on-going relationship which exists between the municipal prosecutor and her fellow police officers. While there may be no prima facie conflict of interest, the specter of an appearance of impropriety so permeates this situation as to preclude the dual service.
There are two arguable distinctions between the facts of Opinion 672 and the present inquiry. First, the inquirer, as an offer of the State Police, is not, strictly speaking, a co-worker, superior, or subordinate of municipal police officers who are likely to be called upon the testify in municipal court, and thus would not present the same type of conflict described in Opinion 672. Second, the fact that the municipality in question has its own full-time police force means that the occasions in which an officer of the State Police, with whom the inquirer clearly does have a direct working relationship, is called to testify in a proceeding in the municipal court in question would be reduced, thus mitigating the possibility of conflict.
Upon careful reflection, we do not believe that either distinction is sufficient to merit a different conclusion from that reached in Opinion 672. Regardless of the color of the uniform they wear, the public believes that law enforcement officers, of whatever type, are on the same team as prosecutors. While it is true that this perception of interdependence would probably exist to some extent regardless of whether the prosecutor was himself a uniformed law enforcement officer, it creates an atmosphere that warrants special caution against any further intrusions into public confidence in the independent judgment of the prosecutor, free from any biases that might be created by the prosecutor's own personal interests.
A municipal prosecutor is regularly called upon to assess the credibility of evidence offered by law enforcement officers in order to make an independent determination, as required by RPC 3.8, as to whether probable cause exists for prosecution. When the prosecutor is himself a uniformed and armed member of the police force (whether state or local), we think the public might reasonably conclude that he could not properly assess the credibility of brother or sister police officers with the required independence. While it may be true that there is no direct chain of command between a state police trooper and a municipal police officer, they perform essentially identical functions within their respective geographical jurisdictions, and have equivalent professional interests in advocating for the criminal prosecution of defendants they arrest. See generally N.J.S.A. 53:2-1 (powers and duties of State Police in general). In appropriate circumstances the state and local police forces cooperate and coordinate their activities. Id. It might therefore be asking too much for a police officer, acting as prosecutor, to question the veracity, conduct or expertise of another police officer. More to the point for purposes of RPC 1.7(c)(2), public confidence in the independent professional judgement of a prosecutor would be undermined by such dual service.