Can a New Jersey municipal prosecutor (or another lawyer in the city law department) prosecute city employees, including police, at departmental disciplinary hearings and appeals?

Plain-English summary

A first assistant city attorney asked whether the municipal prosecutor, or any of the other five members of the law department, could prosecute city employees, including police, in departmental hearings at the local level and on subsequent appeals to administrative agencies (civil service) and the courts. The Committee drew on its prior decisions. Opinion 400 held it unethical to act as prosecutor for the State in a municipal-court case where the defendant is a police officer or other employee of the same municipality; Opinion 410 extended that to bar a municipal prosecutor from prosecuting a police officer at a local departmental hearing.

The Committee explained that both opinions rest on the appearance of conflict and the public's view that the municipal prosecutor, the police, and indeed all municipal employees, are "on the same team." Having found the initial conflict, that conflict continues through the various appellate levels. Asked whether the bar extends to all members of the municipal law department, the Committee said "to propose the question is to answer it": given the appearance-of-conflict basis, any member of the municipal "family" is barred from acting as prosecutor.

The inquirer suggested that Township of Edison v. Mezzecca and Opinion 400 foresee the municipal prosecutor advising the municipality at later disciplinary hearings. The Committee clarified that both the court's decision and Opinion 400 presuppose that the municipal attorney's role at the hearing would be advisory, with the matter prosecuted by independent counsel and defended by counsel selected per Mezzecca and N.J.S. 40A:14-155.

Currency note

This opinion was issued in 1979, 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. It rested on the now-abandoned "appearance of impropriety" standard; in current New Jersey terms the conflict analysis corresponds to RPC 1.7. The statute cited (N.J.S. 40A:14-155) may since have been amended. Treat this page as historical context, not current guidance.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 the municipal prosecutor prosecute a police officer at a disciplinary hearing?

A: No. The opinion held the appearance of conflict bars the municipal prosecutor from prosecuting city employees, including police, at departmental hearings and through the appeals.

Q: Does the bar reach other lawyers in the city law department?

A: Yes. The opinion held that any member of the municipal "family" is barred, because the basis is the appearance of conflict, not the particular lawyer.

Q: Who should prosecute, then?

A: Independent counsel. The opinion said the municipal law department's role at such hearings is advisory, with the matter prosecuted by independent counsel and defended by counsel selected under Mezzecca and N.J.S. 40A:14-155.

Background and rules framework

The opinion applied the appearance-of-conflict principle from Opinions 400 and 410 to disciplinary hearings and their appeals, extending the bar across the whole municipal law department. In current New Jersey terms the conflict analysis corresponds to RPC 1.7. The holding reserved the law department for an advisory role and required independent prosecuting counsel.

Citations and references

Rules of Professional Conduct:

• MR 1.7 / NJ RPC 1.7 (conflict of interest; current clients)

Statutes:

• N.J.S. 40A:14-155 (defense of municipal police in disciplinary proceedings)

Other opinions cited:

• NJ ACPE Opinion 400, 102 N.J.L.J. 73 (1978); Opinion 410, 102 N.J.L.J. 451 (1978)

Cases:

• Township of Edison v. Mezzecca, 147 N.J. Super. 9 (App. Div. 1977)

See also

• NJ ACPE Op. 428: Insurer Defense Counsel for a Town and Practice Before Its Bodies
• NJ ACPE Op. 448: A Private Prosecutor Defending in the Same Court
• NJ ACPE Op. 452: Municipal Prosecutor and a Partner on the Planning Board

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp423-1.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.

103 N.J.L.J. 481, May 24, 1979

OPINION 423

Conflict of Interest Municipal Prosecutor Prosecuting Municipal Employees at Hearings and on Appeals

A first assistant city attorney inquires of the propriety of the municipal prosecutor or any of the other five members of the law department prosecuting city employees, including members of the police department, in departmental hearings at the local level and on subsequent appeals to administrative agencies (civil service) and the courts.

This Committee has previously decided, in Opinion 400, 102 N.J.L.J. 73 (1978), that it is unethical to act as prosecutor for the State in a case in the municipal court in which the attorney serves as prosecutor where the defendant is a police officer or other employee of the same municipality. This result was extended in Opinion 410, 102 N.J.L.J. 451 (1978), to bar a municipal prosecutor from prosecuting a member of the police department at a local departmental hearing on charges against the police officer.

Both opinions are bottomed on the appearance of conflict and the view of the public that the municipal prosecutor and the police and, for that matter, all municipal employees, are "on the same team." Having found the initial conflict, that conflict continues through the various appellate levels. The inquirer further requests clarification whether this bar would apply to all members of the municipal law department. To propose the question is to answer it. Given the basis for the opinion, that is, the "appearance of conflict," any member of the municipal "family" would be barred from acting as prosecutor.

The inquirer suggests that The Township of Edison v. Mezzecca, 147 N.J. Super. 9 (App. Div. 1977), and our Opinion 400, 102 N.J.L.J. 73 (1978), foresee and permit that the municipal prosecutor will be advising the municipality at the later disciplinary hearings. Both the opinion of the court and Opinion 400, however, presuppose that the municipal attorney's duties would be advisory at the hearing, which would be prosecuted by independent counsel and defended by counsel selected in accordance with the dictates of The Township of Edison v. Mezzecca, supra, and N.J.S. 40A:14-155.