When the county must provide a jail guard a defense to a criminal complaint, may the county counsel handle that defense, or must outside counsel be retained?
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This page answers the general question as of 1973. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
A county counsel asked the Committee about a jail guard at one of the county jails who had been named as a defendant in a municipal court complaint by a person he had been holding, alleging an assault and battery committed in the course of the guard's county employment. The county counsel had advised the board of freeholders that the county owed the guard a legal defense, and, because of Opinion 106, outside counsel selected by the guard had already been retained by the board.
The inquiry was whether the county counsel could represent the guard or whether outside counsel had to be secured. The Committee concluded that the county counsel or his assistant could not appear on behalf of the defendant jail guard in a criminal proceeding, and that an outside attorney should be engaged.
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 public-officer conflict principle it applied is now treated 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 Treat this page as historical context, not current guidance.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 rule, deadline, or requirement mentioned here.
Common questions
Q: Can a county counsel defend a county employee in a criminal case?
A: Under this opinion, no; the county counsel and his assistants could not appear for the jail guard in the criminal proceeding.
Q: Who should defend the employee instead?
A: An outside attorney; the opinion approved the board of freeholders' retention of outside counsel selected by the guard.
Background and rules framework
The opinion applied the conflict principle limiting where a county counsel may appear, drawn from Opinion 106. In current New Jersey terms, these conflicts are governed by RPC 1.7 and RPC 1.11.
Citations and references
Rules of Professional Conduct:
- Public-officer conflict principle, as in effect 1973; now MR 1.7 / NJ RPC 1.7 and MR 1.11 / NJ RPC 1.11
Other opinions cited:
- NJ ACPE Opinion 106, 90 N.J.L.J. 97 (1967)
See also
- NJ ACPE Op. 294: A Former Public Lawyer Representing Private Clients Before His Old Agency
- NJ ACPE Op. 277: A Municipal Legal Assistant's Associate Against the Municipality
- NJ ACPE Op. 297: A Development Corporation's Counsel Who is a Prosecutor's Partner
Source
- Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp272-1.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. 1373, December 6, 1973
OPINION 272
County Attorney Defending Accused Jail Guard
An inquiry by a county counsel has been addressed to this Committee. A jail guard in one of the county jails has been named as defendant in a complaint filed in a municipal court by a party arrested and brought to the county jail. The complaint alleges that the jail guard committed an assault and battery upon the arrested party. The action of the jail guard was in the course of his employment by the county. The inquirer has advised the board of freeholders that in his opinion the county owed the jail guard a legal defense in the matter of the complaint and because of our Opinion 106, 90 N.J.L.J. 97 (1967), outside counsel selected by the jail guard has been retained by the board of freeholders to represent the jail guard.
The inquiry is whether the county counsel may represent the jail guard or whether outside county counsel must be secured. In our opinion, the county counsel or his assistant cannot appear on behalf of the defendant jail guard in a criminal proceeding, but outside attorney should be engaged.
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