May a lawyer who is also a police officer on leave, and his firm, handle criminal cases in the municipality where he serves on the police force?

Plain-English summary

The inquirer had been a member of a New Jersey municipal police department for 21 years and held the rank of lieutenant; he had recently been admitted to the bar and was about to join a law firm in a different municipality within the same county, taking a leave of absence from the police department and likely resigning if the association worked out. He asked whether the firm could handle a criminal case in the municipality where he was a police officer on leave.

The Committee answered that neither the inquirer nor the firm could handle any criminal cases arising in the municipality where the inquirer was a police officer on leave. It rested on Canon 36, which prohibits an attorney from accepting employment in any matter he investigated or passed upon while in public office or employ, and on A.B.A. Opinions 134 and 135 (1935), which interpret Canon 36 to extend the prohibition to any matter that originated in the office with which the attorney was connected where he held a position of confidence and actually knew or had the opportunity to know facts, and to extend it to partners or associates in the same firm.

The Committee concluded that as long as the inquirer was connected with the police department, neither he nor any member of his firm could represent a defendant on any charge arising within that municipality, and that even after his retirement neither he nor any member of the firm could do so at any time prior to the complete severance of the inquirer from the police department.

Currency note

This opinion was issued in June 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 36 (a former public officer's bar on matters he handled in office) and the A.B.A. opinions construing it, including imputation to partners and associates. These subjects are now treated under RPC 1.11 (former and current government officers and employees) and RPC 1.10 (imputation of conflicts). Treat this page as historical context, not current guidance.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 lawyer who is a police officer on leave defend criminal cases in his own municipality?

A: No. The Committee held that neither the lawyer nor his firm may handle any criminal case arising in the municipality where he is a police officer on leave.

Q: Does the bar end when he retires from the force?

A: Not immediately. The Committee said the bar continues after retirement, at any time prior to the inquirer's complete severance from the police department.

Q: Does it reach the rest of his firm?

A: Yes. Citing the A.B.A. opinions construing Canon 36, the Committee extended the prohibition to the partners and associates in the firm.

Background and rules framework

The opinion applies Canon 36 of the Canons of Professional Ethics, which barred a lawyer from accepting employment in a matter he investigated or passed upon while holding public office or employment, as construed by A.B.A. Opinions 134 and 135 (1935) to reach matters originating in the office and to be imputed to the lawyer's firm. In current New Jersey terms, the successive government-and-private problem maps to RPC 1.11, and the firm-wide reach maps to RPC 1.10.

Citations and references

Other authorities:

• Canons of Professional Ethics, Canon 36 (employment in a matter handled in public office)
• A.B.A. Comm. on Professional Ethics and Grievances, Opinions 134 and 135 (1935): construing Canon 36 and extending it to partners and associates

See also

• NJ ACPE Op. 117: Borough Attorney Advising the Planning Board
• NJ ACPE Op. 113: A Firm Representing the Local Police Union

Source

• Landing page: https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp111-1.html

Original opinion text

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

90 N.J.L.J. 361
June 1, 1967

OPINION 111

Attorney - Police Officer
Effect of Retirement from Public Employment

The inquirer presents the following facts: He has been a member of the police department of a New Jersey municipality for 21 years and presently holds the rank of lieutenant in said police department; he was recently admitted to the bar of the State of New Jersey; he is about to become associated with a law firm in a municipality other than where he was employed as a police officer but within the same county; while engaged in the pursuit of law with the law firm he will be on leave of absence from the police department and probably will resign if the association works out.

The question presented is: May the law firm handle a criminal case in the municipality where one member of the firm is a police officer on leave of absence from the police department?

It is the opinion of the Committee that neither the inquirer nor the firm with which he becomes associated may handle any criminal cases arising in the municipality in which the inquirer is a police officer on leave of absence.

Canons of Professional Ethics, Canon 36 directly prohibits an attorney from accepting employment in any matter which he has investigated or passed upon while employed in public office or employ. ABA Comm. on Professional Ethics and Grievances, Opinion 134 (1935), interprets Canon 36 and extends the prohibition to any matter which originated in the office with which the attorney was connected where he was in a position of confidence and actually knew or had the opportunity to know facts because of his position in said office. Opinion 135 (1935) is to the same effect, and Opinion 134 extends the prohibition of Canon 36 to partners or associates in the same law firm.

It is therefore the opinion of this Committee that as long as the inquirer is connected with the police department of the municipality neither he nor any member of the firm with which he is associated may represent a defendant in defense of any charge arising within that municipality, and that even after the inquirer's retirement neither he nor any member of the firm with which he is associated may represent any defendant in defense of any charge arising within that municipality any time prior to the complete severance of the inquirer from its police department.