May a municipal prosecutor be politically active in a neighboring municipality and elsewhere in the county where he serves?

Plain-English summary

The inquiry asked whether a municipal prosecutor could ethically continue to be politically active in the municipality adjoining the one he prosecutes for, and whether he could be politically active in the county where both municipalities are located.

The Committee found no specific rule barred the conduct. R. 1:17-1 prohibits political activity by judges, court personnel, and persons employed by or assigned to a municipal court, and R. 1:17-2 excludes county prosecutors except as provided by statute; the intent of R. 1:17 is to regulate the judicial branch, and the statute on county prosecutors does not by its terms reach municipal prosecutors. Because no specific rule or statute governed, the Committee looked to the general principle of whether there is an appearance of conflict to the lay public, restated in Opinion 265 and reflected in the Supreme Court's decision in State v. Galati, 64 N.J. 572 (1974), which held a P.B.A. attorney may not defend a party when an officer of the local will testify for the State.

Judged by those standards, the Committee found nothing unethical in the inquirer's proposed conduct. He expressly stated that the political activity would not even be in the municipality where he serves. By analogy to R. 1:15-3(b), which permits a municipal attorney to represent a resident of an adjoining municipality in a joint municipal court, and to Opinion 265, which let a municipal public defender represent private clients in his municipality's court, the Committee concluded the public would not be bound to believe this prosecutor had a special status setting him apart from other lawyers. Noting the historic role of lawyers in the political process (EC 8-7), it held that so long as the attorney's activities do not create an appearance of professional impropriety or conflict with his official duties, his conduct is permissible.

Currency note

This opinion was issued in 1974, 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. It applied the appearance-of-impropriety principle (DR 9-101, Canon 9) now reflected in RPC 1.7 and RPC 8.4, and relied on court rules (R. 1:17, R. 1:15-3(b), R. 7:4-4) that may since have been amended or renumbered. Treat this page as historical context, not current guidance.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 prosecutor take part in politics in a neighboring town?

A: Under this opinion, yes. The Committee found nothing unethical where the political activity was not in the municipality the prosecutor serves.

Q: Do the rules barring political activity apply to municipal prosecutors?

A: The Committee read R. 1:17 as regulating the judicial branch, and the statute on county prosecutors as not reaching municipal prosecutors, so no specific rule barred the conduct.

Q: What was the controlling test once no specific rule applied?

A: Whether the conduct creates an appearance of conflict to the lay public; the Committee found it did not, so long as the activity does not create an appearance of impropriety or conflict with the prosecutor's official duties.

Background and rules framework

The opinion construed the court rules governing political activity (R. 1:17) and municipal practice (R. 1:15-3(b), R. 7:4-4) and applied the general appearance-of-impropriety principle of DR 9-101 and Canon 9, informed by State v. Galati. In current New Jersey terms, the conflict and appearance principles are reflected in RPC 1.7 and RPC 8.4.

Citations and references

Rules of Professional Conduct:

• DR 9-101 and Canon 9 (appearance of impropriety), as in effect 1974; now MR 1.7 / NJ RPC 1.7 and MR 8.4 / NJ RPC 8.4
• EC 8-7 (lawyers' role in improving the legal system)

Court rules:

• R. 1:17-1, R. 1:17-2 (political activity); R. 1:15-3(b) (municipal attorney practice); R. 7:4-4 (prosecution in municipal courts), as in effect 1974

Cases:

• State v. Galati, 64 N.J. 572 (1974), P.B.A. attorney conflict
• In re Spitalnick, 63 N.J. 429 (1973), disinterested justice
• State v. Deutsch, 34 N.J. 190 (1961), appearance of fair administration of justice
• Offutt v. United States, 348 U.S. 11 (1954), justice must satisfy the appearance of justice

Other opinions cited:

• NJ ACPE Opinion 8, 86 N.J.L.J. 718 (1963); Opinion 265, 96 N.J.L.J. 1253 (1973)

See also

• NJ ACPE Op. 297: A Development Corporation's Counsel Who is a Prosecutor's Partner
• NJ ACPE Op. 300: An Attorney for Both a Planning Board and a Board of Health
• NJ ACPE Op. 366: A Municipal Prosecutor Whose Partner is the Zoning Board Attorney

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp287-1.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.

97 N.J.L.J. 601, August 15, 1974

OPINION 287

Conflict of Interest

Municipal Prosecutor Political Activity - Municipal Practice

An attorney inquires whether a municipal prosecutor may ethically continue to be active in the municipality adjoining the municipality for which he acts as prosecutor; and further whether he may be politically active in the county wherein both municipalities are situate.

R. 1:17-1 prohibits from political activity all judges, court personnel, and "all persons employed by or regularly assigned to a ... municipal court."

R. 1:17-2 specifically excludes from its coverage county prosecutors except as otherwise provided by N.J.S. 2A:158-21.

The intent of R. 1:17 is to regulate the conduct of the judicial branch. The statute dealing with activities of county prosecutors does not by its terms apply to municipal prosecutors.

The municipal prosecutor who appears and represents the prosecuting interest in a municipal court is actually "serving as the attorney for the municipality." N.J. Advisory Committee on Professional Ethics, Opinion 8, 86 N.J.L.J. 718 (1963). By virtue of R. 7:4-4 a municipal prosecutor, municipal attorney, or indeed any lawyer, may appear and conduct the prosecution of actions in the name of the State of New Jersey in municipal courts.

Where no specific rule or statute prescribes the conduct, we must look to the general principles regulating the conduct of attorneys to determine whether there is any ethical question presented. We recently restated the fundamental principle that governs such questions whether there is appearance of conflict to lay public. N.J. Advisory Committee on Professional Ethics, Opinion 265, 96 N.J.L.J. 1253 (1973).

That principle pervades the recent opinion of our Supreme Court, State v. Galati, 64 N.J. 572 (1974), holding that a P.B.A. attorney may not defend a party when an officer of the local will be testifying for the State.

The Court said:

...in matters of ethics and professional probity, the cause and effect impact upon the public consciousness is almost, perhaps quite, as important as the actual fact Cf. Disciplinary Rule 9-101 exhorting the lawyer to avoid "even the appearance of impropriety." So also, in In re Spitalnick, 63 N.J. 429, 431, 432 (1973), in upholding "the fundamental principle of disinterested justice which is the bulwark of our judicial system," our Court asserted that "a community without certainty in the true administration of justice is a community without justice."

This Court held in State v. Deutsch, 34 N.J. 190, 206 (1961), that "it is vital that justice be administered not only with a balance that is clear and true but also with such eminently fair procedures that the litigants and the public will always have confidence that it is being so administered", quoting the words of Justice Frankfurter in Offutt v. United States, 348 U.S. 11, 14, 7 S. Ct. 11, 99 L. Ed. 11, 16 (1954): "justice must satisfy the appearance of justice."

In a free democracy the administration of justice rests very largely not only on Constitution and laws, but upon public confidence in its integrity and impartiality in execution.

The Court found that the quasi-public status of the P.B.A. attorney was bound to incur a public suspicion that the attorney could trade on his official connections, and cited its own R. 1:15-3(b) forbidding a municipal attorney from appearing in his own court.

Judged by those standards we find nothing unethical in the inquirer's proposed course of conduct. He expressly states that the political activity is not even to be in the municipality wherein he serves. By analogy, R. 1:15-3(b) permits a municipal attorney to represent in a joint municipal court a resident of an adjoining municipality. In Opinion 265, 96 N.J.L.J. 1253 (1973), we held that a municipal public defender could represent private clients in his municipality's court since his public status was as attorney for the indigent defendants and not the municipality.

Attorneys have played a historic role in the development of the American political process. This is stated to be "highly desirable, as lawyers are uniquely qualified to make significant contributions to the improvement of the legal system," EC 8-7, Code of Professional Responsibility of the American Bar Association. On the facts stated we do not believe that the public would be bound to incur a belief that such an attorney would have a special status or bridge of confidentiality and trust which would set him apart from other lawyers. So long as the attorney's activities do not create an appearance of professional impropriety or conflict with his official duties, his conduct is permissible. Canon 9, former A.B.A. Code of Professional Responsibility.