Can a municipal attorney defend a town police officer at a probable-cause hearing in the same municipal court the attorney serves?

Plain-English summary

A police officer had filed an assault-and-battery complaint against a citizen, who countered with a complaint charging the officer with atrocious assault and battery, an indictable offense, and the matter was awaiting a probable-cause hearing in the municipal court of the municipality the officer served. An assistant municipal prosecutor would present the State's case against the officer, leaving him without defense counsel, and the municipality, wanting to protect its reputation and that of its police department and concerned about possible future civil litigation, wished to have its own attorney represent the officer. The municipal attorney, who advised the municipality on police-department matters, asked whether he could do so, relying on Opinion 104.

The Committee held that the municipal attorney should not represent the officer. It recognized that a municipal attorney may, under R. 1:15-3(h), perform official duties that require representing a defendant in his municipal court, but it read its long line of opinions, including Opinions 4, 18, 19, 20, 29, 64, 65, 68, 78, 79, and 88, as establishing that where the public interest is involved, every situation affording a chance for impropriety, however slight, should be avoided to eliminate public suspicion that an attorney in public office will use his position for a client.

The Committee noted that the officer had a statutory right to engage independent counsel at the cost and expense of the municipality, and held that this is what he should do. Given the complaint and cross-complaint, further direct and indirect involvement of both the officer and the municipality could result, and for these reasons the Committee concluded the municipal attorney should not represent the officer at the probable-cause hearing.

Currency note

This opinion was issued in 1976, 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. Conflict and appearance-of-impropriety questions for government lawyers are now analyzed under RPC 1.7; New Jersey abolished the separate appearance-of-impropriety standard in 2004. Treat this page as historical context, not current guidance.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 attorney defend a town police officer in the town's own court?

A: Under this opinion, no, at least at this probable-cause hearing; the Committee held the officer should engage independent counsel instead.

Q: Who pays for the officer's independent counsel?

A: The Committee noted the officer's statutory right to independent counsel at the cost and expense of the municipality.

Q: Why did the cross-complaint matter?

A: Because it raised the prospect of further direct and indirect involvement of both the officer and the municipality, increasing the chance for impropriety the Committee said should be avoided.

Background and rules framework

The opinion weighed the municipal attorney's authority under R. 1:15-3(h) against the Committee's settled rule, drawn from Opinions 88 and 104 among many others, that public-office lawyers must avoid even slight chances for impropriety. In current New Jersey terms, the conflict question is governed by RPC 1.7.

Citations and references

Rules of Professional Conduct:

• R. 1:15-3(h) (municipal attorney performing official duties in his municipal court), as in effect 1976
• Conflict and appearance-of-impropriety principles now under MR 1.7 / NJ RPC 1.7

Other opinions cited:

• NJ ACPE Opinion 104, 90 N.J.L.J. 49 (1967); Opinion 88, 89 N.J.L.J. 49 (1966); and Opinions 4, 18, 19, 20, 29, 64, 65, 68, 78, and 79
• ABA Committee on Professional Ethics and Grievances, Opinion 49 (1931)

See also

• NJ ACPE Op. 377: Defending a Town's Police Officers and Private Practice
• NJ ACPE Op. 410: Municipal Prosecutor Prosecuting Police at a Departmental Hearing
• NJ ACPE Op. 370: A Municipal Solicitor Defending Local Offenders

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp351-1.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.

99 N.J.L.J. 798, September 2, 1976

OPINION 351

Conflict of Interest
Municipal Attorney Representing Police Officer on Probable Cause In Municipal Court

An inquiry has been presented posing the question of whether a municipal attorney may represent a municipal police officer on a probable cause hearing in the same municipal court.

The facts indicate that during a routine investigation by municipal police officers, an incident occurred from which one police officer has filed an assault and battery complaint against an individual citizen, and the individual has countered with a complaint against the officer, alleging atrocious assault and battery, an indictable offense. The matter is recent and it is awaiting a probable cause hearing. The inquirer says that the probable cause hearing will be held in the municipal court of the municipality for which the officer is a policeman. It is contemplated that at the time the probable cause hearing is held regarding the indictable offense charged against the police officer, the disorderly persons offense charged against the individual will also be tried.

It is further alleged that an assistant municipal prosecutor of the municipality will present the State's case against the police officer on the probable cause hearing. This leaves the police officer without defense counsel at the probable cause hearing.

The inquirer further states that as part of his duties as municipal attorney, he will be required to advise the municipality in matters concerning the police department, and he also admits that in the past he has advised the municipality when a disciplinary hearing was held involving a police officer as well as other employees, and he recognizes that if such a situation presented itself against an individual police officer, he would withdraw from participation in the proceeding. The reason for this inquiry is that his municipality desires to protect its reputation and the specific reputation of the police department, and this officer and the municipality are fearful that some future civil litigation might arise out of the incident, and apparently for all these reasons the municipality would like to have its attorney represent the police officer.

The inquirer refers to our Opinion 104, 90 N.J.L.J. 49 (1967), to justify his position in finding no impropriety for appearing in defense of the police officer. In this Opinion the Committee stated "our Supreme Court has implemented the basic policy in a great variety of its rules, and indeed has expressly prohibited attorneys from representing any defendant in the municipal court of the municipality in which the lawyer is the municipal attorney...." It further states that our Supreme Court has expressly authorized a municipal attorney "to perform his official duties" when they require representing a defendant in the municipal court (R. 1:15-3(h)).

We recognize that in an instance of this kind, the police officer has the statutory right to engage independent counsel at the cost and expense of the municipality, and this is what we feel he should do. One cannot escape the feeling that by virtue of the complaint and counter complaints filed in this case, further direct and indirect involvement of the police officer as well as the municipality may at some time result, and it is because of all these considerations that we have in a great variety of situations indicated our views as to the impropriety of municipal attorneys appearing on behalf of private clients or for incidents not directly related to the municipality before municipal boards or bodies. See Opinions 4, 18, 19, 20, 29, 64, 65, 68, 78, 79 and many others. In Opinion 88, 89 N.J.L.J. 49 (1966), we said:

Running through all our opinions, in this area of conflict, is the prevailing theme that, where the public interest is involved, every situation which affords a chance for impropriety, however slight, should, if possible, be avoided in order to eliminate public suspicion that an attorney in public office will use his position or influence in behalf of a client. And this is so whether he is the attorney for or a member of a public body, board or agency. In this respect the language of the ABA Committee on Professional Ethics and Grievances, Opinion 49 (1931), is particularly appropriate. The committee said: "If the profession is to occupy that position public esteem which will enable it to be of the greatest usefulness, it must avoid not only all evil but must likewise avoid the appearance of evil.

We therefore are of the opinion that the municipal attorney would not represent the municipal police officer on the probable cause hearing in the municipal court.