Can a municipal prosecutor represent the police department at a departmental disciplinary hearing of charges against a municipal police officer?

Plain-English summary

The inquirer asked whether there is a conflict of interest when a municipal prosecutor represents the police department at a departmental hearing of charges against a municipal police officer. The Committee held that there is, and that it is unethical for the municipal prosecutor to perform that function, relying on its earlier Opinion 400.

The Committee reasoned that the municipal prosecutor frequently works with the police officers in the municipality. Because the manner in which facts are presented is the prosecutor's decision, and the manner of presentation can make a significant difference in the result, the prosecutor is placed in a conflict of interest in presenting the facts to support charges against a police officer in his own municipality. The Committee added that the officers might find it difficult at times to work with a prosecutor who could later be in the position of presenting charges against them.

The Committee concluded that, even though the public is not present during a departmental hearing, the same conflict of interest it had identified in Opinion 400 is present.

Currency note

This opinion was issued in 1978, before New Jersey's 1984 replacement of the Disciplinary Rules by the Rules of Professional Conduct and the later revisions to those rules. In current New Jersey terms the conflict analysis corresponds to 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 Treat this page as historical context, not current guidance.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 prosecutor prosecute a police officer at a departmental hearing?

A: No. The opinion held it is a conflict of interest and unethical, because the prosecutor regularly works with the officers and controls how the supporting facts are presented.

Q: Does it matter that the departmental hearing is closed to the public?

A: No. The opinion concluded the same conflict identified in Opinion 400 is present even though the public is not present during a departmental hearing.

Q: Why is controlling the presentation of facts a problem?

A: The opinion reasoned that the manner of presentation can significantly affect the result, so the prosecutor is conflicted when presenting facts to support charges against an officer in his own municipality.

Background and rules framework

The opinion applied the conflict-of-interest principles the Committee had set out in Opinion 400, focused on a municipal prosecutor's competing relationships with the police he works alongside and may have to prosecute. In current New Jersey terms the analysis corresponds to RPC 1.7.

Citations and references

Rules of Professional Conduct:

• MR 1.7 / NJ RPC 1.7 (conflicts of interest)

Other opinions cited:

• NJ ACPE Opinion 400, 102 N.J.L.J. 73 (1978) (municipal prosecutor conflict)

See also

• NJ ACPE Op. 423: Prosecuting City Employees at Hearings
• NJ ACPE Op. 496: Prosecutor's Staff Privately Represented by the County Criminal Defense Bar

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp410-1.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.

102 N.J.L.J. 451, November 16, 1978

OPINION 410

Conflict of Interest - Municipal Prosecutor Prosecuting Police at Hearing

The inquirer asks whether there is a conflict of interest when a municipal prosecutor represents the police department at a departmental hearing of charges against a municipal police officer.

It is our opinion that there is a conflict of interest and that it is unethical for the municipal prosecutor to perform this function. We rely upon our Opinion 400, 102 N.J.L.J. 73 (1978), in reaching this conclusion. The municipal prosecutor frequently works with the police officers in the municipality. The manner in which facts are presented would be the decision of the prosecutor and frequently the manner of presentation can make a significant difference in the result. Thus the prosecutor is placed in a conflict of interest situation regarding the presenting of appropriate facts to support charges against a police officer in his municipality. Furthermore, it is conceivable that the police officers in the municipality would find it difficult at times to work with a municipal prosecutor who could possibly be in the position at some future time of presenting charges against them.

Therefore, even though the public is not present during a department hearing, the same conflict of interest considered in our Opinion 400, supra, would be present.