Can a township's municipal solicitor serve as defense counsel for people charged with motor vehicle offenses that occurred in his township, if the cases were transferred to a neighboring town's municipal court?

Plain-English summary

The Committee was asked whether a conflict of interest would exist if a township's municipal solicitor appeared as defense counsel in four motor vehicle prosecutions, two of them for drunken driving under N.J.S.A. 39:4-50A, where the violations took place within the township he represented but the matters had been transferred to a neighboring township's municipal court. The inquirer noted that the defendants had been arrested and charged by the state police (the municipality had no police force), that the offenses occurred before his appointment as municipal solicitor, and that the township had a municipal prosecutor to present such cases.

The Committee concluded there would be a conflict of interest. It relied on its Opinion 84, which held it unethical for a municipal attorney to represent a defendant in a criminal case where the alleged offense took place in the municipality the attorney represents, and on Opinions 52, 53, and 139. It also pointed to Opinion 239, where it had interpreted R. 1:15-3(b) to bar a municipal prosecutor from representing an accused before the county court where the offense originated in the municipality for which he was prosecutor.

The Committee said that prohibition applies equally to a municipal solicitor, and it extended the bar to trial in the municipal court of a neighboring township. It held that it would be unseemly and improper for the chief legal officer of a governmental body to represent those accused of violating the law within his jurisdiction in any forum.

Currency note

This opinion was issued in 1977, 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 questions of this kind, decided in part on the appearance-of-impropriety standard New Jersey later abolished in 2004, are now analyzed under RPC 1.7. Treat this page as historical context, not current guidance.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 solicitor defend someone charged with an offense that happened in his town?

A: Under this opinion, no. The Committee found a conflict and held it unethical for the municipality's chief legal officer to defend those accused of offenses occurring within his jurisdiction.

Q: Does moving the case to a neighboring town's court cure the problem?

A: No. The Committee extended the prohibition to trial in a neighboring township's municipal court, holding the bar applies in any forum.

Q: Did it matter that the offenses occurred before his appointment?

A: The Committee noted that fact but still found a conflict, resting on his role as the township's chief legal officer and the offenses having occurred within his jurisdiction.

Background and rules framework

The opinion applied the conflict principle of its Opinion 84 (municipal attorney may not defend offenses occurring in his municipality) and its interpretation of R. 1:15-3(b) in Opinion 239, extending the bar to a municipal solicitor and to trial in a neighboring township's court. In current New Jersey terms, conflict-of-interest questions are governed by RPC 1.7.

Citations and references

Rules of Professional Conduct:

• MR 1.7 / NJ RPC 1.7 (conflict of interest); R. 1:15-3(b) as in effect 1977

Statutes:

• N.J.S.A. 39:4-50A (driving while intoxicated)

Other opinions cited:

• NJ ACPE Opinion 84, 88 N.J.L.J. 629 (1965); Opinion 52, 87 N.J.L.J. 610 (1964); Opinion 53, 87 N.J.L.J. 610 (1964); Opinion 139, 91 N.J.L.J. 805 (1968); Opinion 239, 95 N.J.L.J. 481 (1972)

See also

• NJ ACPE Op. 523: Municipal Prosecutor Prosecuting for a Private Client in the Same Court
• NJ ACPE Op. 510: One Attorney Defending and Prosecuting on a Cross-Complaint
• NJ ACPE Op. 377: Defending a Town's Police Officers and Private Practice

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp370-1.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.

100 N.J.L.J. 496, June 2, 1977

OPINION 370

Conflict of Interest
Municipal Solicitor
Defending Local Offenders

We are asked whether a conflict of interest would exist should the municipal solicitor of a township appear as defense counsel in four motor vehicle prosecutions, two arrests being for violations of N.J.S.A. 39:4-50A (drunken driving), where the violations took place within the township represented by the inquirer although the matters have been transferred to the municipal court of a neighboring township. Three other facts said to be pertinent to the inquiry are that the defendants were arrested and charged by the state police since the municipality has no police force; the offenses occurred prior to the appointment of the municipal solicitor but were transferred to the adjoining township for other reasons; and there is a municipal prosecutor appointed to present such cases in the township where the inquirer is employed.

It is our opinion that there would be a conflict of interest under these circumstances. In our Opinion 84, 88 N.J.L.J. 629 (1965), we stated that it would be unethical for a municipal attorney to represent a defendant in a criminal case where the alleged offense took place in the municipality which the attorney represents. See also Opinions 52, 87 N.J.L.J. 610 (1964); 53, 87 N.J.L.J. 610 (1964); and, 139, 91 N.J.L.J. 805 (1968).

We also call the inquirer's attention to Opinion 239, 95 N.J.L.J. 481 (1972), where the committee interpreted R. 1:15-3(b) to prohibit a municipal prosecutor from representing an accused before the county court where the offense originated in the municipality for which he was the prosecutor. Such prohibition would of necessity apply equally to a municipal solicitor and here we would extend the prohibition to encompass trial in the municipal court of a neighboring township. It would be unseemly and improper for the chief legal officer of a governmental body to represent those accused of violating the law within his jurisdiction in any forum, and we so hold.