Can an assistant county prosecutor represent private plaintiffs in a civil rights suit against a police department in the same county?

Plain-English summary

The Committee was asked whether an assistant county prosecutor could be attorney for the plaintiffs in a civil suit against a municipality of the same county, its police department, and individual officers, with all causes of action (false imprisonment, trespass, and civil-rights violations) based on a raid conducted by that police department, even though the raid took place before the inquirer was appointed assistant prosecutor.

The Committee answered that he could not. It recalled its many opinions holding that municipal attorneys, municipal prosecutors, school board attorneys, and attorneys for planning and zoning boards may not take positions on behalf of private clients in opposition to the interests of the governmental authorities they represent. Here, the inquirer's duty to his private clients would require him to attack directly the legality of the actions of a law enforcement agency of a municipality within the county he serves, which would immediately raise a question of impropriety in the public mind.

The Committee emphasized that the assistant prosecutor's first duty is the prosecution of crime within the county, for which he requires the complete cooperation of the municipal police departments, and that the public interest requires he not endanger that cooperation by alienating the very people he must rely on, citing EC 8-8 of the ABA Code of Professional Responsibility. It concluded there was an inescapable conflict between the duty an assistant prosecutor owes his office and the public and that of representing private clients against local law enforcement, and that it would be improper for him to do so.

Currency note

This opinion was issued in November 1969, before New Jersey's September 13, 1971 adoption of the Disciplinary Rules (Code of Professional Responsibility), so the Committee was applying the Canons of Professional Ethics and (in discussion) the then-new ABA Code. It also predates the 1984 Rules of Professional Conduct and all later revisions. The conflict principles it applied are now treated under RPC 1.7, with special rules for government lawyers under RPC 1.11. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.

Common questions

Q: Can a part-time assistant prosecutor sue the police of his own county for private clients?

A: No. The Committee found an inescapable conflict between the prosecutor's duty to his office (and reliance on police cooperation) and representing private clients against local law enforcement, and held the representation improper.

Q: Does it matter that the events predated his appointment as assistant prosecutor?

A: No. The Committee found the conflict improper even though the underlying raid took place before the inquirer became assistant prosecutor.

Q: Why does police cooperation factor into the analysis?

A: The Committee reasoned that the prosecutor's first duty is prosecuting crime in the county, which requires the complete cooperation of the municipal police; suing them for private clients would alienate the very people he must rely on, contrary to the public interest.

Background and rules framework

The opinion applied the Canons of Professional Ethics and the Committee's line of government-conflict opinions, supported by EC 8-8 of the ABA Code of Professional Responsibility, to a prosecutor representing private clients against local police. In current New Jersey terms the analysis falls under RPC 1.7 and the conflict rules for current and former government officers in RPC 1.11.

Citations and references

Other authorities:

• ABA Code of Professional Responsibility, EC 8-8 (and footnote 11)

See also

• NJ ACPE Op. 167: A Municipal Judge Representing Land Developers
• NJ ACPE Op. 370: Municipal Solicitor Defending Local Offenders
• NJ ACPE Op. 524: Freeholder Practicing Law Within the County as Prosecutor or Solicitor

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp162-1.html
• Issuing authority: New Jersey Supreme Court Advisory Committee on Professional Ethics, via the NJ Courts Supreme Court Committees page

Original opinion text

Reproduced from a full-text mirror of the official opinion for research purposes. The linked official source controls.

92 N.J.L.J. 726, November 6, 1969

OPINION 162

Conflict of Interest - Assistant Prosecutor Suing Local Police

This Committee has received the following inquiry:

May an assistant county prosecutor be the attorney for the plaintiffs in a civil suit against a municipality of the same county, its police department, and individual police officers of the department, sounding in false imprisonment, trespass, and violation of civil rights, where all causes of action are based on a raid conducted by the said police department, although the raid took place prior to the inquirer's being appointed assistant prosecutor?

It is the opinion of the Committee that the inquirer, who is an assistant prosecutor for the county in which the alleged offense took place, may not represent the plaintiffs in a civil action against a municipality, its police department and individual members of the same located in the county for which he is an assistant prosecutor.

This Committee has held on many occasions that municipal attorneys, municipal prosecutors, school board attorneys, attorneys for planning boards, zoning boards, etc., may not take positions on behalf of private clients in opposition to the interests of the governmental authorities which they represent. It is obvious from the inquiry that it will be the duty of the inquirer on behalf of his private clients to directly attack the legality of the actions of a law enforcement agency of one of the municipalities in the county for which he is an assistant prosecutor. To do so would, in our opinion, immediately raise a question of impropriety in the minds of the general public.

His duty in the first instance is that of prosecution of crime committed within the county, for which he will require the complete cooperation of the police departments of the municipalities within the county. The general public interest requires that he should in no way endanger this public interest by alienating or creating hostility with the very people upon whom he must rely for the protection of the general public interest. See American Bar Association, Code of Professional Responsibility, EC 8-8, including footnote 11.

It is the opinion of this Committee that there is an inescapable conflict of interest between the duty an assistant prosecutor owes to his office and the general public and that of representing private clients against local law enforcement agencies. We therefore conclude that it would be improper for him to do so.