Can a New Jersey lawyer be a municipal prosecutor while a law partner serves as planning board attorney in the same town?

Plain-English summary

The Committee was asked whether an attorney may hold the position of municipal prosecutor at the same time that his partner holds the position of planning board attorney in the same municipality. It drew on its long line of opinions on representation of two or more public bodies by the same attorney, his partners, or his associates.

The governing principle, restated from Opinion 366, is that if an attorney himself must decline employment because of a potential or actual conflict, then no partner or associate of his may accept or continue that employment; a lawyer may not do what his partner may not do. The Committee had consistently held that where there is or may be a conflict of interest, the same attorney or his partners and associates should not undertake to represent two public bodies, and had applied that rule to closely parallel facts, including Opinion 366 (improper for a municipal prosecutor to be the partner of an attorney for the zoning board of adjustment) and Opinion 67 (a municipal attorney cannot also serve a board or agency of the same municipality where a conflict may exist).

The Committee confirmed that a municipal prosecutor is a municipal attorney, an appointee of the municipal governing body that sets the salary. On that footing, the prosecutor-and-planning-board-attorney pairing fell within the rule against dual representation of two public bodies of the same municipality, and the partnership relationship extended the disqualification across the firm.

Currency note

This opinion was issued in 1980, 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 applied DR 5-105(D) and R. 1:15-4; the conflict and imputation principles it discussed now correspond broadly to RPC 1.7 and RPC 1.10. Treat this page as historical context, not current guidance.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: Could the lawyer be municipal prosecutor while a partner served the planning board?

A: No. The opinion held that a conflict barring one partner from a public-body role extends to all partners and associates, so the prosecutor-and-planning-board-attorney pairing within one firm in the same municipality was improper.

Q: Is a municipal prosecutor treated as a municipal attorney?

A: Yes. The opinion stated that a municipal prosecutor is a municipal attorney, an appointee of the municipal governing body that fixes the salary, and is therefore subject to the rule against dual representation of two public bodies.

Q: Where does the imputation rule come from?

A: The opinion restated Opinion 366's rule, grounded in DR 5-105(D) and R. 1:15-4, that a lawyer may not do what his partner may not do; if one partner must decline for conflict, the partners and associates must too.

Background and rules framework

The opinion applied the conflict and imputed-disqualification principles then stated in DR 5-105(D) and Court Rule R. 1:15-4, as developed through the Committee's municipal-conflict opinions. In current New Jersey terms, the personal-conflict rule corresponds to RPC 1.7 and the imputation rule to RPC 1.10. The Committee's holding was that the bar on a single lawyer representing two public bodies of one municipality, where a conflict may exist, applies equally to that lawyer's partners and associates.

Citations and references

Rules of Professional Conduct:

• MR 1.7 / NJ RPC 1.7 (conflict of interest; current client)
• MR 1.10 / NJ RPC 1.10 (imputation of conflicts)
• DR 5-105(D) (imputed disqualification of partners and associates) (as in effect 1980)

Court rules:

• R. 1:15-4 (limitations on practice; conflicts)

Other opinions cited:

• NJ ACPE Opinion 366, 100 N.J.L.J. 290 (1977) (prosecutor as partner of zoning-board attorney improper)
• NJ ACPE Opinion 67, 88 N.J.L.J. 81 (1965); Opinion 117, 90 N.J.L.J. 745 (1967); Opinion 415, 103 N.J.L.J. 38 (1979); Opinion 182, 93 N.J.L.J. 492 (1970)

Cases:

• State v. Zold, 105 N.J. Super. 194 (Law Div. 1969), aff'd o.b., 110 N.J. Super. 33 (App. Div. 1970)

See also

• NJ ACPE Op. 460: Regional Sewerage Authority Counsel and Municipal Counsel as Partners
• NJ ACPE Op. 501: Assistant County Counsel as Municipal Prosecutor or Partner of Municipal Counsel
• NJ ACPE Op. 523: Municipal Prosecutor Prosecuting for a Private Client in the Same Court

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp452-1.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.

Full opinion text unavailable from the official source; see the linked source above for the complete text.