May an attorney who is a county freeholder represent a private client appealing the county prosecutor's refusal to hire him as a county detective?

Plain-English summary

The inquiry arose from an appeal to the Civil Service Commission by an unsuccessful applicant for the position of county detective. An attorney who was a member of the county board of freeholders represented the unsuccessful applicant, while the respondent was the county prosecutor, appearing in opposition through an assistant prosecutor. The inquirer asked whether the freeholder-attorney could represent the applicant, and, separately, whether the prosecutor could be represented by a regular member of his staff rather than by county counsel.

The Committee explained that county detectives, though appointed by the county prosecutor under state law that sets their numbers and minimum salaries, are county employees rather than state employees, with salaries paid by the county treasurer, citing Cooper v. Imbriani. Because county detectives are county employees, the Committee concluded it would be unethical for a freeholder-attorney to prosecute an appeal of the prosecutor's decision not to hire a particular individual. When the prosecutor decides whom to hire, fire, or promote, he acts as chief administrator of his office on behalf of the county, so a freeholder-attorney representing the aggrieved applicant would be opposing another county officer on behalf of a private client, an impermissible conflict.

On the second question, the Committee declined to opine, holding that whether the prosecutor should be represented by his own staff, by county counsel, or by the Attorney General is a matter of state law rather than legal ethics, more appropriately addressed to county counsel or the Attorney General.

Currency note

This opinion was issued in 1975, 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 concern it applied is now treated under RPC 1.7 and, for government lawyers, RPC 1.11. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance.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 freeholder who is a lawyer sue or oppose the county prosecutor for a private client?

A: Not in this situation. The Committee held it would be unethical for the freeholder-attorney to prosecute an appeal of the prosecutor's hiring decision, because both are county officers.

Q: Why did it matter that county detectives are county employees?

A: Because the prosecutor's hiring decision was an act on behalf of the county, so a freeholder opposing it for a private client would be setting himself against another county officer, creating the conflict.

Q: Did the Committee decide who should represent the prosecutor?

A: No. It treated that as a question of state law, not legal ethics, and suggested directing it to county counsel or the Attorney General's office.

Background and rules framework

The opinion applied the public-officer conflict principle, citing Opinion 291, to a lawyer who held county office and sought to oppose another county officer for a private client. In current New Jersey terms, such conflicts are governed by RPC 1.7 (concurrent conflicts) and RPC 1.11 (government officers and employees).

Citations and references

Statutes:

• N.J.S. 2A:167-1 et seq. (appointment of county detectives)
• N.J.S. 2A:157-18 (salaries of county detectives)

Cases:

• Cooper v. Imbriani, 63 N.J. 535, 537 n.1 (1973), county detectives are county employees

Other opinions cited:

• NJ ACPE Opinion 291, 97 N.J.L.J. 801 (1974)

See also

• NJ ACPE Op. 318: A Freeholder's Husband Serving as Assistant County Counsel
• NJ ACPE Op. 355: A Freeholder's Partner as Assistant County Counsel
• NJ ACPE Op. 524: A Freeholder Practicing Law Within the County (Prosecutor or Solicitor)
• NJ ACPE Op. 322: A Board of Adjustment Member Suing His Own Municipality

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp308-1.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.

98 N.J.L.J. 534, June 12, 1975

OPINION 308

Conflict of Interest Freeholder, Attorney for County Detective before Civil Service

This inquiry involves an appeal to the Civil Service Commission by an unsuccessful applicant for the position of county detective. An attorney member of the county board of freeholders in the county where the application was made is the attorney for the unsuccessful applicant, and the respondent is the county prosecutor, who is appearing in opposition to the appeal through an assistant prosecutor. The inquirer poses two questions:

1. May the freeholder-attorney represent the unsuccessful applicant before the Civil Service Commission?

2. May the Prosecutor be represented by a regular member of his staff, rather than by the county counsel?

County detectives are appointed by the county prosecutor in each of the several counties, pursuant to N.J.S. 2A:167-1, et seq. Although the number of detectives who may be appointed in the various classes of counties and the minimum salaries of each are established by state law, their salaries are paid by the county treasurer, upon the certification of the prosecutor, out of funds of the county, and the prosecutor may, with the approval of the board of chosen freeholders, fix the salaries of such county detectives at amounts in excess of the minimum statutory salaries. N.J.S. 2A:157-18. Despite the fact that the appointment of county detectives and the amount of their salaries are, to some extent, governed by state law, they are county employees rather than in the state service. Cooper v. Imbriani, 63 N.J. 535, 537, n. 1 (1973).

Since the county detectives are county employees, it would be unethical for an attorney member of the county board of freeholders to prosecute an appeal of the prosecutor's decision not to hire a particular individual. Cf. Opinion 291, 97 N.J.L.J. 801 (1974). When acting as the chief administrator of the prosecutor's office in decisions affecting the hiring, firing and promotion of employees, the county prosecutor is clearly acting on behalf of the county. The representation by a freeholder-attorney of a person aggrieved by such a personnel decision of the county prosecutor requires the freeholder-attorney to oppose another county officer on behalf of his private client, creating an impermissible conflict of interest.

As to the second question, whether the county prosecutor should be represented by a member of his staff, by the county counsel or by the Attorney General's office is a matter of state law rather than a question of legal ethics, and we express no opinion on that point. It would be more appropriate to address this second question to the county counsel or to the Attorney General's office.