May a municipal prosecutor, in one consolidated trial, prosecute a civilian and at the same time defend a police officer charged by that civilian?

Plain-English summary

The question was whether a municipal prosecutor could prosecute charges of "resisting arrest" and "using obscene language in public" against a civilian defendant and, in a consolidated trial, appear in defense of a police officer the civilian had charged with assault arising out of the same incident, all in the municipal court of the municipality where both the officer and the prosecutor served.

The Committee said it would be improper for a municipal prosecutor to serve in such a dual capacity in the same trial. It recognized that although a prosecutor's primary duty is to see that justice is done, he cannot completely divorce himself from advocacy (Canon 5), and that in the public mind he represents the people in bringing the charged to justice and, in a broad sense, has the whole municipality as his client. If he appeared for a defendant, some citizens would inevitably believe his position in the official family had unfairly helped achieve success.

The Committee then narrowed the analysis. It noted that the Supreme Court, though it generally prohibits attorneys from representing defendants in the municipal court of the municipality where they serve as municipal attorney, expressly authorized such representation "in the performance of his official duties as municipal attorney" under R. 1:26-3(c), an exception meant to let municipal attorneys appear on behalf of police officers for practical reasons. So there could be no finding of impropriety merely because a municipal attorney appears in municipal court to defend a policeman. The Committee found no basis in the rule, however, to authorize a municipal attorney in a consolidated trial of two defendants charged with separate offenses arising out of the same incident to appear for the State prosecuting one charge and for the defendant in defense of the other; such dual participation, however well intentioned, would create a suspicion in many citizens' minds that the scales of justice were not evenly balanced.

Currency note

This opinion was issued in January 1967, before New Jersey's September 13, 1971 adoption of the Disciplinary Rules (Code of Professional Responsibility), and well before the 1984 Rules of Professional Conduct and all later revisions. It applied Canon 5 (the prosecutor's role) and the Supreme Court's R.1:26 municipal-practice rules. These subjects are now treated under RPC 1.7 (concurrent conflicts of interest) and RPC 3.8 (special responsibilities of a prosecutor). Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific requirement mentioned here.

Common questions

Q: Can a municipal prosecutor prosecute one defendant and defend another in the same trial?

A: No. The Committee held it improper for the prosecutor to prosecute a civilian and defend the police officer charged by that civilian in the same consolidated trial.

Q: Could the prosecutor defend the police officer at all?

A: Yes, in a separate posture. The Committee said a court rule (R. 1:26-3(c)) expressly let a municipal attorney appear in municipal court to defend a policeman, so defending the officer by itself was not improper.

Q: What was the specific vice the Committee identified?

A: Appearing for the State on one charge and for a defendant on another in the same consolidated trial, which would create suspicion that the scales of justice were not evenly balanced.

Background and rules framework

The opinion applies Canon 5 on the prosecutor's dual obligation to seek justice while acting as an advocate, together with the Supreme Court's R.1:26 rules governing when municipal attorneys may appear in their own municipal court. In current New Jersey terms, the concurrent-representation conflict maps to RPC 1.7 and the prosecutor-specific duties to RPC 3.8.

Citations and references

Court rules:

• R. 1:26-3(c): express authorization for a municipal attorney to defend in municipal court in the performance of his official duties

Other authorities:

• Canons of Professional Ethics, Canon 5 (the prosecutor's role)
• Senate Bill No. 514 (introduced Dec. 5, 1966): legal aid to police officers in line-of-duty suits

Other opinions cited:

• NJ ACPE Opinion 8, 86 N.J.L.J. 718 (1963) (the municipality as the prosecutor's client); Opinions 4, 18, 19, 20, 29, 65, 66, 68, 78, 79 (municipal attorneys before municipal bodies)

See also

• NJ ACPE Op. 106: County Attorneys and Prosecutors Representing Private Clients
• NJ ACPE Op. 162: Assistant Prosecutor Suing Local Police

Source

• Landing page: https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp104-1.html

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

90 N.J.L.J. 49
January 26, 1967

OPINION 104

Municipal Prosecutor
Defense of Municipal Employee

A lawyer presents the following question for our opinion: May a municipal prosecutor prosecute charges of "resisting arrest" and "using obscene language in public" against a civilian defendant, and, in a consolidated trial, appear in defense of a police officer charged with assault by the civilian defendant arising out of the same incident? The inquirer states that the trial in question is one in the municipal court of the same municipality in which the policeman and prosecutor are serving.

We are of the opinion that it would be improper for a municipal prosecutor to serve in such a dual capacity in the same trial.

While prosecuting attorneys - and, indeed, all attorneys - are charged with a duty of seeing that justice is done in any trial, it must be recognized that in an adversary system of trial such as ours it is implicit that attorneys are advocates. While the traditional standards of our profession recognize that the primary duty of a prosecutor is not to convict but to see that justice is done, a prosecutor can never completely divorce himself from advocacy (see Canons of Professional Ethics, Canon 5). Moreover, in the public mind the prosecutor is the representative of the people who is designated to play an active role in bringing persons charged with criminal or quasi-criminal offenses to justice. Furthermore, as we have previously noted, a municipal prosecutor in the broad sense has as his client the whole municipality. See N.J. Advisory Committee on Professional Ethics Opinion 8, 86 N.J.L.J. 718 (1963). In the public mind, if he appears on behalf of a defendant, there will inevitably be some citizens who will believe that the attorney's position in the official family may have unfairly helped achieve his success in the trial.

It is because of such considerations that we have in a great variety of situations indicated our views as to the impropriety of municipal attorneys appearing on behalf of private clients before municipal boards or bodies (Opinions 4, 18, 19, 20, 29, 65, 66, 68, 78 and 79).

While we do not think that the basic soundness of such a standard of professional conduct can be successfully attacked, nevertheless, the present inquiry cannot be disposed of on this basis. Although our Supreme Court has implemented the basic policy in a great variety of its rules, and indeed has expressly prohibited attorneys from representing any defendant in the municipal court of the municipality in which the lawyer is the municipal attorney, the Court has also expressly authorized such representation of a defendant by a municipal attorney "in the performance of his official duties as municipal attorney" (R. 1:26-3(c)). This departure from the basic philosophy above referred to was intended to permit municipal attorneys to appear on behalf of police officers, but we believe the exception granted by the Court was impelled by practical considerations, making full compliance with the basic philosophy presently unattainable. There are undoubtedly valid reasons in the public interest why police officers charged with offenses in such instances are entitled to representation by counsel without expense to them, and this is a problem which has troubled not only the courts but the Legislature as well. (See, for example, Senate Bill No. 514, introduced December 5, 1966 to amend "An act providing for legal aid to police officers in suits against them arising from incidents in the line of duty.") In any event, in the light of the express exception in the rule there can be no finding of impropriety in a situation where a municipal attorney appears in the municipal court merely because he is appearing in defense of a policeman of the municipality.

We find no basis in the rule, however, to authorize a municipal attorney in a consolidated trial of two defendants, each charged with separate offenses arising out of the same incident, to appear for the State in prosecuting one charge and to appear for the defendant in defense of the other charge. Such dual participation in a criminal or quasi criminal trial by a member of the municipal family, however well intentioned, will surely create a suspicion in the minds of many of the citizens that the scales of justice are not evenly balanced.