Can a municipal prosecutor also take public-defender assignments to defend criminal cases in county court?

Plain-English summary

The Committee was asked whether the conflict-of-interest rule bars a municipal prosecutor from serving in a pool of attorneys assigned cases by the public defender. The inquirer pointed to State v. Zold, 105 N.J. Super. 194 (Law Div. 1969), aff'd 110 N.J. Super. 33 (App. Div. 1970), which found no constitutional deprivation of effective assistance where an assigned public defender also alternated as a municipal prosecutor.

The Committee read the governing court rule, since amended to R. 1:15-3(b), which lets a municipal attorney represent a defendant in a joint municipal court where the defendant resides and the offense was allegedly committed in a municipality for which he is not the attorney. Citing its Opinions 53, 138, and 182, the Committee interpreted R. 1:15-3(b) to prohibit a municipal prosecutor from representing an accused before the county court where the offense originated in, or the accused resided in, his own municipality. As for an accused from outside that municipality, the Committee held that the prosecutor may represent him: although municipal and county prosecutors confer, the Committee did not regard that as precluding a municipal prosecutor's appearance as defense counsel. It concluded that where the offense occurred outside the prosecutor's municipality and the accused resided outside it, the municipal prosecutor may represent that accused both in another municipality and before the county court.

Currency note

This opinion was issued in 1972, before New Jersey's adoption of the 2004 revisions to the Rules of Professional Conduct, and predates the 1984 replacement of the Disciplinary Rules by the RPCs. The conflict principles it applied are now treated under RPC 1.7, and the court rule it construed (R. 1:15-3(b)) may since have changed. Treat this page as historical context, not current guidance.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 municipal prosecutor ever defend an accused in county court?

A: Under this opinion, yes, but only where both the offense and the accused are from outside the municipality for which he serves as prosecutor.

Q: Why is a case from the prosecutor's own municipality off-limits?

A: The Committee read R. 1:15-3(b) and its Opinions 53, 138, and 182 to prohibit a municipal prosecutor from defending an accused in county court where the offense originated in, or the accused resided in, his own municipality.

Q: Does conferring with the county prosecutor disqualify the municipal prosecutor generally?

A: No. The Committee noted that municipal and county prosecutors confer, but did not regard that as precluding the municipal prosecutor's appearance as defense counsel in an out-of-municipality case.

Background and rules framework

The opinion construed the court rule on municipal-attorney representation (now R. 1:15-3(b)) together with the conflict principles then in the Disciplinary Rules. In current New Jersey terms the conflict analysis falls under RPC 1.7.

Citations and references

Rules of Professional Conduct:

• Conflict-of-interest principles as in effect 1972; now MR 1.7 / NJ RPC 1.7

Court rules:

• R. 1:15-3(b) (formerly R. 1:26-5(c) / R. 1:26-3(c)), municipal attorney representing defendants

Cases:

• State v. Zold, 105 N.J. Super. 194 (Law Div. 1969), aff'd o.b. 110 N.J. Super. 33 (App. Div. 1970)

Other opinions cited:

• NJ ACPE Opinions 53, 87 N.J.L.J. 610 (1964); 138, 91 N.J.L.J. 805 (1968); 182, 93 N.J.L.J. 492 (1970)

See also

• NJ ACPE Op. 314: A Municipal Prosecutor Defending a Driver Before the DMV
• NJ ACPE Op. 370: A Municipal Solicitor Defending Local Offenders
• NJ ACPE Op. 261: A Prosecutor's Own Lawyer Defending the Accused

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp239-1.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.

95 N.J.L.J. 481, May 18, 1972

OPINION 239

Conflict of Interests Municipal Prosecutor - Assigned to Public Defender Pool

We are asked to advise whether or not the conflict of interests rule bars a municipal prosecutor from serving as a member of a pool of attorneys assigned cases by the office of the public defender.

The inquirer asserts that the opinion in State v. Zold, 105 N.J. Super. 194 (Law Div. 1969), affirmed o.b. 110 N.J. Super. 33 (App. Div. 1970), holds that there is no conflict of interest in such a situation. In that case a defendant, convicted of robbery, argued that he was denied effective assistance of assigned counsel before the county court because the assigned attorney from the office of the public defender was a member of a municipal law department in that county and alternated in the role of municipal prosecutor. The court held that the proofs showed no constitutional deprivation of effective assistance of counsel and that the assigned attorney's role of municipal prosecutor did not constitute proof that the defendant was denied effective assistance of counsel. The court interpreted R. 1:26-5(c), then incorporated in R. 1:26-3(c) effective January 2, 1963, as indicating that the Supreme Court had not intended to prohibit a municipal attorney from defending an accused in the county or superior court for the reason that the Supreme Court would have said so if it so intended.

Since that decision the rule has been amended as R. 1:15-3(b); it now provides:

but he may represent a defendant in a joint municipal court if the defendant resides and the offense was allegedly committed in a municipality for which he is not the attorney.

Before that rule change, in our Opinion 53, 87 N.J.L.J. 610 (1964) (not referred to in State v. Zold, supra), we held it improper for a municipal attorney to represent a private client in the county court on an appeal from conviction in the municipal court of that municipal prosecutor. See our Opinion 138, 91 N.J.L.J. 805 (1968), and our Opinion 182, 93 N.J.L.J. 492 (1970).

We interpret R. 1:15-3(b) to prohibit the municipal prosecutor from representing an accused before the county court where the offense originated in, or accused resided in, the municipality for which he is the prosecutor.

There remains the question whether a municipal prosecutor may represent an accused before the county court when the accused resides outside of or the offense was committed outside of the municipality of the municipal prosecutor. We hold that he may. The role of municipal prosecutors in New Jersey varies. Some courts reportedly require him in every case. Before the county courts his appearance is limited to cases involving municipal ordinances. In all counties the municipal prosecutor and the county prosecutor have occasion to confer. The county prosecutors advise the municipal prosecutors as to when it is appropriate to deal with certain offenses at the local level. We do not regard this activity of municipal prosecutors as precluding their appearance in the county court as defense counsel.

Accordingly, it is our opinion that where the offense occurred outside of the municipal prosecutor's municipality and the accused resided outside of it, the municipal prosecutor may represent that accused both in another municipality and before the county court.