May a municipal public defender, paid by the town to defend indigent defendants, also represent paying clients before that town's municipal court and agencies?

Plain-English summary

The inquirer had been appointed a municipal public defender, paid by the municipality to represent all indigent defendants charged with non-indictable offenses before the municipal court. He asked whether it was ethical for a public defender appointed and salaried by a municipality to represent retained clients before that municipality's court or other boards and agencies.

The Committee began by noting that lawyers should weigh not only the possibility of actual conflict but also the appearance of conflict to the lay public, quoting In re Abrams. It then concluded that a public defender's representation of other defendants before the court and bodies of the municipality was entirely proper. In discharging his duties as public defender, the attorney's clients are the indigent defendants he is called upon to defend, not the municipality; the fact that he is appointed and paid by the municipality is immaterial, because his undivided fidelity in any such representation runs to the defendant whose cause he advances. On those circumstances, the Committee found his appearances before the municipal court or other municipal boards or agencies presented no conflict, real or apparent.

Currency note

This opinion was issued in 1973, 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 and appearance principles it applied are now treated under RPC 1.7 and, for government-related lawyers, RPC 1.11. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a municipal public defender take private clients in the same town's court?

A: Under this opinion, yes; the Committee found the representation entirely proper.

Q: Why doesn't being paid by the town create a conflict?

A: Because the public defender's clients are the indigent defendants he defends, not the municipality; the Committee called his appointment and salary from the town immaterial to his fidelity.

Background and rules framework

The opinion applied the conflict and appearance-of-impropriety principles to a municipal public defender, distinguishing his role from that of an attorney for the municipality. In current New Jersey terms, these map to RPC 1.7 and RPC 1.11.

Citations and references

Rules of Professional Conduct:

• Conflict and appearance-of-impropriety principles (DR 9-101), as in effect 1973; now MR 1.7 / NJ RPC 1.7 and MR 1.11 / NJ RPC 1.11

Cases:

• In re Abrams, 56 N.J. 271, 277 (1970), appearance and the repute of the profession

See also

• NJ ACPE Op. 287: A Municipal Prosecutor's Political Activity
• NJ ACPE Op. 292: A Fire District Attorney Appearing in Municipal Court
• NJ ACPE Op. 266: A County Planning Board Member's Private Municipal Practice

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp265-1.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.

96 N.J.L.J. 1253, November 1, 1973

OPINION 265

Conflict of Interest Municipal Public Defender Private Municipal Practice

The inquirer has been appointed a municipal public defender. He is paid by the municipality in question to represent all indigent defendants charged with non-indictable offenses before the municipal court. He asks the following question:

Is it ethical for a public defender appointed and salaried by a municipality to represent retained clients before the municipal court or other boards and agencies of that municipality?

Lawyers are well advised to consider not only the possibility of actual conflict before taking on such representations as contemplated, but also the appearance of the same to the lay public. As the Supreme Court of New Jersey said In re Abrams, 56 N.J. 277 (1970), "Appearances too often are a matter of ethical concern, for the public has an interest in the repute of the legal profession."

We believe, however, that a public defender's representation of other defendants before the court and other bodies of that municipality is entirely proper. The attorney in discharging his duties as public defender has as his clients the indigent defendants he is called upon to defend and not the municipality. The fact that he is appointed and paid by the municipality is immaterial, for his undivided fidelity in any such representation is to the defendant whose cause he advances.

Under such circumstances, the inquirer's appearances before the municipal court or other boards or agencies of the municipality present no conflict, real or apparent.