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                                         88 N.J.L.J. 629
                                        September 30, 1965


Appointed by the New Jersey Supreme Court


Municipal Attorneys Defending Offenders

    May a municipal attorney represent a defendant in a criminal case where the alleged offense was committed in the municipality which the attorney represents? The inquiry points out that such representation would, in most cases, require the municipal attorney, acting as counsel for the defendant, to cross-examine police officers of the municipality called as witnesses against his client.
    In our opinion such representation would be unethical. We have many times had occasion to set forth the underlying principles upon which this conclusion is based. Among others, see N.J. Advisory Committee on Professional Ethics, Opinions 52 and 53, 87 N.J.L.J. 610 (1964), and the cases there cited. A municipal attorney is called upon to render advice and help in all matters of municipal concern, including the enforcement of the law. To represent a person charged with criminal dereliction within the municipal limits requires the attorney to undertake a conflicting task. This he may not ethically do.
    A further point is worthy of mention. His public employment gives the attorney access to information and material which may give him an unfair advantage in his representation of a private client where his municipality is involved. Whether he avails himself of this opportunity is essentially beside the point. While he is charged with the important responsibility of acting for the municipality, he should not allow himself, for private gain or otherwise, to assume an equivocal position. See especially N.J. Advisory Committee on Professional Ethics, Opinion 19, 86 N.J.L.J. 734 (1963), where we had occasion to observe, in an only slightly different context:
            It is improper for a member of the bar at the same time to act in the interest of a client and against the same client, even though the areas of representation are entirely distinct. This is no less true where the client is a public body. The loyalty which an attorney owes a client should not be subjected to the weakening temptation inherent in such a situation. Quite obviously the profession as a whole would suffer in the eyes of the public were this practice to be condoned. Furthermore, there is a real danger that the familiarity with a client's affairs resulting from the representation of a client in a particular matter may impart to the attorney information which he may use to advantage in the action against the same client and which he would not have come by except for the first representation.

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