May a county attorney or county prosecutor (or their partners) represent private clients before county boards or in criminal matters in that county?

Plain-English summary

The inquiry asked whether an attorney holding the position of county attorney, solicitor, or counsel could, for a private client, (a) appear before the county tax board, (b) represent a defendant before a magistrate in an indictable criminal proceeding in the county he served, (c) represent a defendant indicted for crime in that county, or (d) appear before any county agency, and whether any prohibition extended to his law partners and employees. The inquirer noted that prior opinions had addressed municipal attorneys but not specifically county attorneys.

The Committee answered that neither the county attorney nor his assistants could represent private clients in any of those situations, and that the interdiction applied to their law partners and associates, including a case indicted in another county but transferred for trial to the county where the county attorney was an official. The county attorney represents all the people of the county, so his conduct must prevent any inference that he is using his public office for private gain (citing the Committee's Opinion 70 and Drinker's Legal Ethics). The Committee cited A.B.A. Opinion 186 (1938) as exactly on point, where a county attorney could not defend a person who would be prosecuted by the county prosecutor, because that would create an unseemly situation likely to destroy public confidence and present the spectacle of one county official prosecuting and another defending the same accused.

The Committee held that the same rule applied to the county prosecutor and his assistants, partners, and associates: as legal representatives of the general public, their appearance for private clients before county boards or officials would give rise to suspicion of undue influence. It noted that the Supreme Court's rule R.1:26 prohibits certain attorneys in public positions from practicing before specified bodies and that R.1:26-4 extends such prohibitions to their partners, employers, employees, and office associates, and concluded that the same rule applies to the county attorney and county prosecutor and their partners and associates.

Currency note

This opinion was issued in February 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 the appearance-of-impropriety principle of the Canons, the Committee's prior opinions, and the Supreme Court's R.1:26 rules on public-office attorneys. These subjects are now treated under RPC 1.7 (concurrent conflicts) and RPC 1.11 (former and current government officers and employees), with imputation under RPC 1.10. 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 county attorney represent private clients before county boards?

A: No. The Committee held that neither the county attorney nor his assistants could appear before the county tax board or any county agency for a private client, and the bar reached their partners and associates.

Q: Can a county prosecutor defend a criminal case in his own county?

A: No. The Committee applied the same rule to the prosecutor and his assistants, citing A.B.A. Opinion 186 (1938) on the unseemly spectacle of one county official prosecuting and another defending the same accused.

Q: Does it matter if the case was indicted in another county?

A: No. The Committee said the bar applied even to a case indicted elsewhere but transferred for trial to the county where the county attorney is an official.

Background and rules framework

The opinion rests on the appearance-of-impropriety principle of the Canons of Professional Ethics and on the Supreme Court's R.1:26 limits on attorneys holding public office, applied to county attorneys and prosecutors and imputed to their firms. In current New Jersey terms, the concurrent-representation problem maps to RPC 1.7, the government-lawyer dimension to RPC 1.11, and the firm-wide reach to RPC 1.10.

Citations and references

Court rules:

• R.1:26 and R.1:26-4 (New Jersey Supreme Court rules on public-office attorneys and extension to partners and associates)

Other authorities:

• Drinker, Legal Ethics 118-119 (1963): public prosecutors defending the accused
• A.B.A. Opinion 186 (1938) (county attorney defending in his own county; exactly on point); also A.B.A. Opinions 16 (1929) and 242 (1942)

Other opinions cited:

• NJ ACPE Opinion 70, 88 N.J.L.J. 761 (1965), and Opinions 4, 18, 19, 20, 29, 64, 65, 68, 78, 79 (municipal attorneys before municipal bodies)

See also

• NJ ACPE Op. 104: Municipal Prosecutor Defending a Municipal Employee
• 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/acp106-1.html

Original opinion text

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

90 N.J.L.J. 97
February 16, 1967

OPINION 106

County Attorney and Prosecutor
Private Clients

An inquirer requests our opinion as to whether it would be proper for an attorney holding the position of county attorney, solicitor or counsel (a) to appear before the county tax board on behalf of a private client, (b) to represent a defendant before a magistrate in a criminal proceeding which is an indictable offense in the county which the county counsel serves, (c) to represent a defendant indicted for crime in that county, or (d) to appear before any agency of that county on behalf of a private client. He also desires to be informed as to whether, if he is precluded from representing private clients in any of the cited situations, such prohibition extends to his law partners and attorneys employed by him.

The inquirer asserts that in our Opinions 4, 18, 19, 20, 29, 64, 65, 68, 78 and 79 we have dealt with situations concerning municipal attorneys and their representation of clients before municipal boards or bodies, but that we have never specifically passed upon these questions as they relate to county attorneys (by whatever name they may be known) or their assistants.

To pose the question is to suggest the answer. Neither the county attorney nor his assistants can represent private clients in any of the situations above stated, and this interdiction is applicable to their law partners and associates. This would apply also in a situation not mentioned by the inquirer where an indictment was found in another county but transferred for trial to the county in which the county attorney is an official. The county attorney represents all of the people of the county in matters affecting it. Thus, his conduct must be such as to prevent any inference arising that he is using his public office for private gain (see this Committee's Opinion 70, 88 N.J.L.J. 761 (1965)). This rule generally applies with equal force to attorneys representing municipalities, counties or the State. See Drinker, Legal Ethics 118, 119 (1963). Drinker goes so far as to state the rule to be, citing numerous opinions of the Committee on Professional Ethics and Grievance of the American Bar Association (hereafter ABA), that, if a public prosecutor of one state defends a person accused of crime in another state, it would tend to undermine public confidence in him, in his office, in his own state.

As stated above, there are a number of ABA opinions bearing on this situation, and Opinion 186 (1938) is exactly on point. There, a statutory county attorney sought to represent a defendant in a criminal proceeding in his own county. The defendant would have been prosecuted by the county prosecutor. The ABA opinion pointed out that the county attorney could not accept the representation because this would create "an unseemly situation likely to destroy public confidence in him as a public officer, and bring reproach to his profession." The opinion goes on to point out that, if such representation occurred, there would be presented the spectacle of one public official prosecuting, and another public official of the same county defending, an accused. The conflict of interest in such a case is obvious. See also ABA Opinions 16 (1929) and 242 (1942).

The inquirer in this case also poses the question of whether the prosecutor and assistant prosecutor of a county are prohibited from appearing before the county tax board, planning board and other agencies of the county. What we have stated above with respect to the county attorney also applies to the county prosecutor and his assistants, as well as to their partners and associates. The county prosecutor, while appointed by the governor, is paid by the county board of freeholders, as are his assistants. These officials are the legal representatives of the general public, and to have their appearance on behalf of private clients before other public officials of the same county or before county boards or offices cannot help but give rise to suspicion that, by virtue of being members of the same official county family, they have influence which could be asserted on behalf of such client beyond that possessed by other members of the bar.

Our Supreme Court has clearly indicated its views on this general problem in R.1:26, where certain classes of attorneys occupying positions of a public nature or associating with persons holding such offices are prohibited from practicing before certain governing bodies or boards. And, in R.1:26-4, it is stated that, where the attorney is prohibited from such practice such prohibition also extends to his partners, employers, employees and office associates.

We conclude that the same rule applies to the county attorney and county prosecutor, as well as to their partners and associates.