If a lawyer is appointed and paid by a municipality to defend its individual police officers in criminal matters, may he or his firm still appear before that municipality's other agencies for private clients?

Plain-English summary

The inquirer was being considered for appointment by a municipal governing body to represent individual police officers who might be defendants in criminal or quasi-criminal matters arising from the performance of their duties, under N.J.S. 40A:14-155. The appointment would be on a per-case basis for a fee paid by the municipality. The Committee stressed that he would not represent the police department, give it advice, or otherwise assist the municipality. He asked whether he or his firm would then be barred from appearing before any municipal body other than the municipal court in the appointing municipality.

The Committee analogized the role to that of a municipal public defender. In Opinion 265, it had held there is no conflict where an attorney is the appointed public defender and represents private clients before the court and other bodies of the same municipality, because he is discharging his public-defender duties and not representing the municipality, despite being appointed and paid by it. It found no significant difference between a public defender and a lawyer appointed to represent individual police officers, since in neither case does he represent the municipality.

The Committee concluded that, because the inquirer would be representing individuals who happen to be police officers, there is no conflict, real or apparent, in his appearing before municipal bodies other than the municipal court in the appointing municipality, provided no police officer from that municipality appears as a witness. It noted, however, that it would be a potential conflict for him to represent a private client before the municipal court of the same municipality that appointed him to defend its police officers.

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 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 Treat this page as historical context, not current guidance.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: Does being paid by a town to defend its police officers make the town your client?

A: Under this opinion, no. The Committee treated the lawyer as representing the individual officers, not the municipality, just as a municipal public defender represents defendants rather than the town that pays him.

Q: Where may such a lawyer still appear for private clients?

A: Before municipal bodies other than the municipal court of the appointing municipality, provided no police officer from that municipality appears as a witness.

Q: Where is appearing for a private client a potential conflict?

A: In the municipal court of the same municipality that appointed him to defend its police officers, which the Committee identified as a potential conflict for reasons it described as readily apparent.

Background and rules framework

The opinion analyzed whether a municipally paid appointment to defend individual police officers makes the municipality the lawyer's client for conflict purposes. Drawing on Opinion 265 (municipal public defender) and Opinion 260, the Committee held it does not, and permitted private appearances before other municipal bodies subject to the witness caveat. 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)

Statutes:

• N.J.S. 40A:14-155 (municipal indemnification/defense of police officers)

Other opinions cited:

• NJ ACPE Opinion 265, 96 N.J.L.J. 1253 (1973); Opinion 260, 96 N.J.L.J. 1129 (1973)

See also

• NJ ACPE Op. 623: Municipal Attorney Reserving Representation of Police Officers
• NJ ACPE Op. 610: Police-Officer Attorney Representing a Defendant Against His Municipality
• NJ ACPE Op. 385: PBA Legal Advisor Also Serving a School Board

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp377-1.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. 698, August 11, 1977

OPINION 377

Conflict of Interest
Municipal Defender of Police
Officers Private Municipal Practice

The inquirer is being considered for appointment by a municipal governing body to be the attorney to represent individual police officers who may be defendants in criminal or quasi-criminal matters as a result of actions which occur during the performance of their duties pursuant to N.J.S. 40A:14-155. The appointment would be on a per case basis for a fee to be paid by the municipality. It is significant to note that he would not be representing the police department or required to give advice to the department or in any manner be required to assist the municipality.

He asks whether he or any member of his firm, if he is so appointed, would thereafter be prohibited from appearing before any municipal body other than the municipal court in the municipality which appoints him. The inquirer's appointment is similar to the appointment of a municipal public defender. In Opinion 265, 96 N.J.L.J. 1253 (1973), this Committee held that there is no conflict where an attorney is the appointed public defender and represents private clients before the court and other bodies of the same municipality. In such case, the attorney is discharging his duties as public defender and is not representing the municipality and there is no conflict despite the fact he is appointed and paid by the municipality. There is no significant difference between the situation where an attorney is appointed public defender by the municipality and where he is appointed to represent individual police officers since in neither case is he representing the municipality. It would, however, be a potential conflict for him to appear representing a private client in the same municipality which has appointed him to defend its individual police officers for reasons which are readily apparent.

Therefore, in view of the fact that the inquirer would be representing individuals who happen to be police officers, there is no conflict, real or apparent, in his appearing before municipal bodies other than the municipal court in the municipality which appoints him provided no police officer from that municipality appears as a witness. Opinion 260, 96 N.J.L.J. 1129 (1973).