Can a lawyer both defend a client on a municipal-court charge and prosecute the cross-complaint that client filed against the same complaining witness?

Plain-English summary

A police officer charged with assaulting a complaining witness in a municipal-court action retained the inquiring attorney. The magistrate directed the attorney to simultaneously prosecute the complaint the officer (the attorney's client) had filed against that same complaining witness. The attorney asked whether he could properly both defend his client on the assault charge and prosecute the client's complaint.

The Committee concluded there was no conflict, because the attorney was representing only the policeman, both as defendant and as the prosecutor of the policeman's own complaint. It reasoned that the magistrate's temporary appointment did not make the attorney a "Municipal Attorney" or a "Public Prosecutor" as the Committee had defined those roles in prior opinions.

Because the attorney had been appointed by the court to serve in this one instance and was not a municipal prosecutor, the Committee found that Opinions 104, 140, and 400, which address public-prosecutor conflicts, did not apply to his situation.

Currency note

This opinion was issued in 1983, 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. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance.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: Was there a conflict in defending a client and prosecuting that client's own complaint at the same time?

A: No. The opinion concluded there was no conflict because the attorney represented only his own client in both roles, not any adverse interest.

Q: Did the court's appointment make the lawyer a public prosecutor?

A: No. The opinion held the temporary, one-time appointment did not make the lawyer a "Municipal Attorney" or "Public Prosecutor," so the prosecutor-conflict opinions did not apply.

Background and rules framework

The opinion was decided under the conflict-of-interest principles then governing New Jersey lawyers, before the 1984 adoption of the Rules of Professional Conduct. In current terms the question maps onto RPC 1.7 (concurrent conflicts of interest). The Committee distinguished its public-prosecutor line of opinions because the attorney here served only his own client, not a governmental prosecuting role.

Citations and references

Rules of Professional Conduct:

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

Other opinions cited:

• NJ ACPE Opinion 104, 90 N.J.L.J. 49 (1967) (public-prosecutor conflicts; held inapplicable)
• NJ ACPE Opinion 140, 91 N.J.L.J. 805 (1968) (public-prosecutor conflicts; held inapplicable)
• NJ ACPE Opinion 400, 102 N.J.L.J. 73 (1978) (public-prosecutor conflicts; held inapplicable)

See also

No sibling opinions yet indexed.

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp510-1.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.

111 N.J.L.J. 16, January 6, 1983

OPINION 510

Conflict of Interest Defending Client and Simultaneously Prosecuting Complaint Filed by Client in Municipal Court

This inquiry is submitted by an attorney retained by a police officer charged with assaulting a complaining witness in a Municipal Court action. The attorney was directed by the Magistrate to simultaneously prosecute the complaint filed by his client against the complaining witness. The attorney questions his obligation to both defend his client and prosecute his complaint in the Municipal Court.

We believe that there is no conflict because the attorney is representing only the policeman, both as defendant and as prosecutor.

The temporary appointment of the attorney does not make him a "Municipal Attorney" or a "Public Prosecutor" as defined by us in previous opinions.

Because of the fact that the attorney was appointed by the Court to serve in this one instance, and is not a "Municipal Prosecutor," we do not believe that Opinion 104, 90 N.J.L.J. 49 (1967); Opinion 140, 91 N.J.L.J. 805 (1968); or Opinion 400, 102 N.J.L.J. 73 (1978) are applicable.