Can a member of a city's law department who prosecutes in municipal court also defend a police officer charged in that same court?

Plain-English summary

A complaint was filed against a police officer charging him with assault and battery during an arrest. The municipality's law department consisted of a city attorney, two assistants, and a special counsel, with the special counsel serving as municipal prosecutor. The complainant's attorney objected to any member of the city's law department, including its special counsel, serving as defense counsel for the accused police officer, and the Committee was asked whether the objection was valid.

The Committee was of the opinion that any member of the city's law department who prosecutes cases in the municipal court should not be permitted to defend a police officer in the same court. It relied on its Opinion 104, 90 N.J.L.J. 49 (1967), which dealt with a similar problem and held that a municipal prosecutor could not prosecute a complaint against a civilian defendant and, in a consolidated trial, appear in defense of a police officer charged with an assault arising out of the same incident. As in Opinion 104, the Committee noted the municipality is permitted to retain independent counsel to defend the police officer.

Currency note

This opinion was issued in December 1968, 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 Canons of Professional Ethics as developed in the Committee's earlier opinions on municipal prosecutors. The conflict it identified is now analyzed under RPC 1.7 and, for government lawyers, RPC 1.11. Treat this page as historical context, not current guidance.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 the municipal prosecutor defend a police officer in the court where he prosecutes?

A: No. The Committee held that any law-department member who prosecutes in the municipal court should not defend a police officer in that same court.

Q: How can the officer be defended then?

A: The Committee noted, following Opinion 104, that the municipality may retain independent counsel to defend the police officer.

Background and rules framework

The opinion extends Opinion 104's reasoning that a municipal prosecutor cannot stand on both sides of a matter in the same court. The concern is the incompatibility of the prosecutorial role with defending a defendant before the same tribunal. In current New Jersey terms, this is a concurrent-conflict question under RPC 1.7, with RPC 1.11 addressing the special obligations of government lawyers.

Citations and references

Other opinions cited:

• NJ ACPE Opinion 104, 90 N.J.L.J. 49 (1967): municipal prosecutor may not prosecute a civilian and, in a consolidated trial, defend a police officer charged in the same incident

See also

• NJ ACPE Op. 139: Municipal Solicitor Defending a Local Crime
• NJ ACPE Op. 141: Health Board Attorney Conflicts

Source

• Landing page: https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp140-1.html

Original opinion text

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

91 N.J.L.J. 805
December 12, 1968

OPINION 140

Conflict of Interest Municipal Prosecutor Defending Police Officer

A complaint has been filed against a police officer charging him with assault and battery during the course of an arrest. The municipality has a law department consisting of a city attorney, two assistants, and a special counsel. The latter serves as municipal prosecutor. Complainant's attorney has objected to any member of the city's law department, including its special counsel, serving as counsel for the accused police officer. Inquiry has been made whether the objection is valid.

We are of the opinion that any member of the city's law department who prosecutes cases in the municipal court should not be permitted to defend a police officer in the same court.

In our Opinion 104, 90 N.J.L.J. 49 (1967), we dealt with a similar problem and held that a municipal prosecutor could not prosecute a complaint against a civilian defendant and in a consolidated trial appear in defense of a police officer charged with an assault arising out of the same incident. We noted that the municipality is permitted to retain independent counsel to defend the police officer.