If a lawyer becomes municipal prosecutor, are his partners barred from appearing before the town's boards, and from other towns' courts?

Plain-English summary

A municipality announced its intention to create a new post of prosecutor for the local municipal court, and one of the partners of a law firm was being considered for the appointment. He asked whether, if he accepted, the firm's other members would be excluded from appearing before the borough's administrative bodies, namely the borough council, zoning board, and planning board.

The Committee answered in the affirmative. Relying on its Opinion 5, it explained that an attorney serving as municipal prosecutor serves as an attorney for the municipality and should be prohibited from appearing before the board of adjustment, planning board, or mayor and council representing a personal client, because a conflict of interest obviously would exist. Per its Opinion 78, this prohibition applies to all members of the firm. On a second inquiry, the Committee said that if a matter in any way relates to the municipality where the attorney is prosecutor, the prohibition continues; otherwise, in the absence of any conflict, the partners may appear in other municipal courts and in the county courts.

Currency note

This opinion was issued in July 1970, 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 its own prior opinions. It also predates the 1984 Rules of Professional Conduct and all later revisions. The government-conflict and imputed-disqualification principles it applied are now treated under RPC 1.7 and 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 Treat this page as historical context, not current guidance.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: Are a municipal prosecutor's partners barred from the town's boards?

A: Yes. The Committee held all firm members are barred from appearing before the borough council, zoning board, and planning board of that municipality.

Q: Can the partners appear in other towns' courts?

A: Yes, absent a conflict. The Committee said the bar extends to other municipal or county courts only where the matter relates to the municipality the partner prosecutes.

Q: Why does the bar reach the whole firm?

A: Because the prosecutor serves as an attorney for the municipality (Opinion 5), and that prohibition applies to all members of the firm (Opinion 78).

Background and rules framework

The opinion applied the Committee's rule that a municipal prosecutor represents the municipality (Opinion 5) and that such limitations extend to all firm members (Opinion 78), distinguishing matters connected to the prosecutor's municipality from unrelated ones. In current New Jersey terms the analysis falls under RPC 1.7 and RPC 1.11.

Citations and references

Other opinions cited:

• NJ ACPE Opinion 5, 86 N.J.L.J. 361 (1963)
• NJ ACPE Opinion 78, 88 N.J.L.J. 460 (1965)

See also

• NJ ACPE Op. 214: Lawyers Tied to a Municipal Agency Practicing Before Other Agencies
• NJ ACPE Op. 217: Municipal Utilities Authority Attorney and Town Agencies
• NJ ACPE Op. 287: Municipal Prosecutor, Political Activity, and Municipal Practice

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp182-1.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.

93 N.J.L.J. 492, July 9, 1970

OPINION 182

Conflict of Interests Partners of Municipal Prosecutor

A municipality has announced its intention to create a new post of prosecutor for the local municipal court. One of the partners of a law firm is being considered for the appointment.

He has inquired if he accepts the appointment whether the other members of his firm are excluded from appearing before all administrative bodies within the borough namely before the borough council, zoning board and planning board.

We have considered this problem in the past and the answer is in the affirmative.

...an attorney who serves as a municipal prosecutor is serving as an attorney for the municipality and should be prohibited from appearing before the board of adjustment, planning board or mayor and council, representing a personal client, for in a situation such as presented here, there obviously would be a conflict of interest. N.J. Advisory Committee on Professional Ethics, Opinion 5, 86 N.J.L.J. 361 (1963).

This probation would apply to all members of the firm. See this Committee's Opinion 78, 88 N.J.L.J. 460 (1965).

A second inquiry is made as to whether the members of the firm are excluded from practice before other municipal courts or in criminal matters before the county court. If the matter in any way relates to the municipality where the attorney is a prosecutor, then the prohibition would continue; otherwise, in the absence of any conflict of interests the partners may appear in other municipal courts and in the county courts.