May a municipal prosecutor also prosecute complaints in the same municipal court on behalf of a paying private client (the complaining witness)?

Plain-English summary

Two attorneys asked whether it was ethical for a municipal prosecutor to prosecute complaints in his own municipal court on behalf of a client other than the State or municipality, specifically private clients who wished to retain the prosecutor on a regular basis to handle complaints arising from matters such as shoplifting and passing bad checks.

The Committee distinguished its earlier Opinion 448, 105 N.J.L.J. 119 (1980), which held (interpreting Rule 7:4-4 and R. 1:15-3(b)) that a municipal prosecutor could not ethically represent private clients who were defendants in the municipal court. The present inquiry concerned the prosecutor appearing as the attorney for a private client seeking to prosecute a matter, rather than to defend one. The Committee reasoned that in both situations the attorney appears on behalf of the people of the State, and that Rule 7:4-4(b) provides that where no one else appears on behalf of the State or municipality, any attorney may appear on behalf of the complaining witness. Accordingly, the Committee saw no impropriety in the municipal prosecutor prosecuting a matter in his municipal court on behalf of a private client and being paid by that client.

Currency note

This opinion was issued in 1984, before New Jersey's adoption of the 2004 revisions to the Rules of Professional Conduct, and the municipal-court practice rules it relies on (Part 7 of the Court Rules, including Rule 7:4-4, and R. 1:15-3(b)) have since been revised and renumbered. 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 Treat this page as historical context, not current guidance.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: Could a municipal prosecutor be paid to prosecute a private client's complaint in his own court?

A: Yes. The opinion concluded there was no impropriety, because the prosecutor still appears on behalf of the people of the State when prosecuting the complaint.

Q: How is that different from the prosecutor defending a private client?

A: The opinion distinguished Opinion 448, which barred a municipal prosecutor from representing private defendants in the municipal court; prosecuting a complaint, unlike defending one, keeps the attorney on the side of the State.

Q: What rule allowed a private attorney to prosecute the complaint?

A: Per the opinion, Rule 7:4-4(b) provides that where no one else appears for the State or municipality, any attorney may appear on behalf of the complaining witness.

Background and rules framework

The opinion addresses a public-role conflict question, the concern now reflected in RPC 1.7, through the municipal-court practice rules in effect at the time. It turns on Rule 7:4-4(b) (an attorney appearing for the complaining witness where no one else appears for the State) and R. 1:15-3(b) (restrictions on a municipal prosecutor's practice), and distinguishes the defense-side bar of Opinion 448.

Citations and references

Rules of Professional Conduct:

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

Court rules:

• Rule 7:4-4(b) (any attorney may appear for the complaining witness where no one else appears for the State or municipality)
• R. 1:15-3(b) (restrictions on the practice of a municipal prosecutor)

Other opinions cited:

• NJ ACPE Opinion 448 (a municipal prosecutor may not represent private defendants in the municipal court)

See also

• NJ ACPE Op. 563: Municipal Prosecutor's Firm Representing the Judge and Taking Referrals
• NJ ACPE Op. 541: Of-Counsel to a Firm When the Son Is the County Prosecutor
• NJ ACPE Op. 599: Relative of an Assistant Prosecutor Practicing Criminal Law

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp523-1.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.

113 N.J.L.J. 225, March 1, 1984

OPINION 523

Municipal Prosecutor Prosecuting Complaints on Behalf of Private Client in the Same Municipal Court

We have been asked by two different attorneys whether it is ethical for the Municipal Prosecutor to prosecute complaints in his Municipal Court on behalf of a client other than the State or Municipality, specifically private clients wishing to retain the services of the Municipal Prosecutor on a regular basis. He will handle complaints in Municipal Court arising out of such matters as shoplifting and passing bad checks.

Practice in Municipal Courts is governed largely by Part 7 of the Court Rules. We have previously dealt with these rules, and specifically Rule 7:4-4, in our Opinion 448, 105 N.J.L.J. 119 (1980), in which we held that a Municipal Prosecutor could not ethically represent private clients who were defendants in the Municipal Court. See R. 1:15-3(b).

The question posed in this inquiry deals with the Municipal Prosecutor as the attorney for a private client seeking to prosecute a matter in the Municipal Court on behalf of that client rather than directly on behalf of the State or Municipality. In both cases, however, the attorney appears on behalf of the people of the State. Rule 7:4-4(b) provides that where no one else appears on behalf of the State or municipality, any attorney may appear on behalf of the complaining witness. Accordingly, we see no impropriety in the Municipal Prosecutor prosecuting a matter in his Municipal Court on behalf of a private client and being paid by that client.