Can a municipal prosecutor represent his own client on appeal to the county court, challenging a conviction from the same municipal court he serves?

Plain-English summary

The inquirer held the part-time office of legal assistant to a municipal department of public safety and acted as the municipal prosecutor. He also had a private client who was convicted in the local municipal court of a zoning-ordinance violation. Because of his official position, the inquirer did not participate in that municipal-court proceeding, and the client was represented by other counsel. The client then wished to appeal to the county court, where the matter would be tried de novo, and asked the inquirer to represent him.

The Committee, drawing on a line of its prior opinions under Canon 6, reasoned that a municipal prosecutor is in effect serving as attorney for the municipality, with the entire municipality as his client, and should not appear in any court against the municipality. To appear in the county court challenging the determination of his own municipal court would be highly improper. The Committee observed that county courts often refer appeals back to the municipal court to correct technical defects, so there is frequently a continuing relationship between the municipal-court matter and the appeal, and the public could not understand a prosecutor questioning his own court's determination merely because he had abstained from the case below.

Quoting Drinker and its own Opinion 19, the Committee noted that a lawyer who is an employee should not take cases against the company, and that a prosecutor may not change sides. It concluded that the contemplated representation would be improper.

Currency note

This opinion was issued in September 1964, before New Jersey's September 13, 1971 adoption of the Disciplinary Rules (Code of Professional Responsibility), and well before the 1984 Rules of Professional Conduct and all later revisions. It applied Canon 6 of the former Canons of Professional Ethics; conflicts for current public officers and the duties of government lawyers are now addressed by RPC 1.7 and RPC 1.11. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.

Common questions

Q: Did abstaining from the municipal-court case cure the problem?

A: No. The Committee held that the prosecutor could not appear on the county-court appeal even though he had abstained below, because he would be questioning his own municipal court's determination in the same matter.

Q: Who did the Committee treat as the prosecutor's client?

A: The entire municipality. The Committee said a municipal prosecutor is in effect attorney for the municipality, so appearing against it in any court would be improper.

Q: Why did the continuing relationship between the courts matter?

A: The Committee noted that county courts often send appeals back to the municipal court to fix technical defects, so the appeal and the municipal-court matter remain linked, reinforcing that the prosecutor would be acting against his own court and client.

Background and rules framework

The opinion applied Canon 6 of the former Canons of Professional Ethics, which prohibited representing conflicting interests, treating the municipal prosecutor as counsel for the municipality. It relied on a line of the Committee's earlier opinions (4, 5, 8, 18, 19, 20, and 24) and on Drinker, Legal Ethics. The current analysis for government-lawyer conflicts appears in RPC 1.7 and RPC 1.11.

Citations and references

Rules of Professional Conduct (as in effect at the time):

• Canon of Professional Ethics 6 (adverse influences and conflicting interests)

Other opinions cited:

• N.J. ACPE Opinion 4, 86 N.J.L.J. 357 (1963); Opinion 5, 86 N.J.L.J. 361 (1963); Opinion 8, 86 N.J.L.J. 718 (1963); Opinions 18, 19, 20, 86 N.J.L.J. 734 (1963); Opinion 24, 87 N.J.L.J. 19 (1964): municipal-attorney and prosecutor conflicts under Canon 6
• Drinker, Legal Ethics 118-19, 298 (1953): an employee-lawyer should not take cases against the employer; a prosecutor may not change sides

See also

• NJ ACPE Op. 67: Municipal Attorney Before Other Agencies
• NJ ACPE Op. 62: Municipal Attorney Representing a Pedestrian
• NJ ACPE Op. 52: Attorney to a Municipal Parking Authority

Source

• Landing page: https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp53-1.html

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

87 N.J.L.J. 610
September 24, 1964

OPINION 53

Conflict of Interest
Legal Assistant, Municipal Prosecutor

An attorney inquires about the ethics of his conduct in the following situation.

He holds the part-time office of legal assistant to the department of public safety in one of the municipalities of this State, and he acts as the municipal prosecutor, having been assigned to that position by the director of public safety of the municipality. He also has a client who conducts a business in the municipality, who has been convicted in the local municipal court for an alleged violation of the municipal zoning ordinance. Because of the official position which the attorney maintains, he did not participate in the proceedings in the municipal court, either on behalf of the municipality, which was represented by a member of the law department, or on behalf of his client, who was the defendant in that proceeding. The client on that occasion was represented by other counsel. He was convicted in the municipal court and now desires to appeal the conviction to the county court, and has requested the inquiring attorney to represent him before the county court, where obviously it will be a trial de novo. He inquires whether it would be proper and ethical for him to represent his client in the county court proceedings.

This Committee has on many occasions given consideration to inquiries pertaining to conflicts of interests, where municipal attorneys and municipal prosecutors were involved. See N.J. Advisory Committee on Professional Ethics, Opinion 4, 86 N.J.L.J. 357 (1963); Opinion 5, 86 N.J.L.J. 361 (1963); Opinion 8, 86 N.J.L.J. 718 (1963); Opinion 18, 86 N.J.L.J. 734 (1963); Opinion 19, 86 N.J.L.J. 734 (1963); Opinion 20, 86 N.J.L.J. 734 (1963); Opinion 24, 87 N.J.L.J. 19 (1964). All of these involved Canon 6, entitled Adverse Influences and Conflicting Interests.

We have, in these various opinions, clearly indicated that where an attorney serves as a municipal prosecutor he is, in effect, serving as an attorney for the municipality and should in no way be permitted to appear in any proceeding or in any court against the municipality. We have maintained that an attorney, representing a municipality in such a capacity as municipal prosecutor, has as his client the entire municipality. For him to appear in another court where in effect he is challenging the actions of his own municipality, which obviously is his client, would be highly improper.

There have been many instances where appeals have been instituted in the county court, questioning the determination of the municipal court or matters of procedure therein. Items of filing, or the lack thereof, on time are but a few of the instances where county courts have found it desirable to refer appeals back to the municipal court to straighten out technical defects, so that in those instances, if not in others, there seems to be a continuing relationship between the matter before the municipal court and the case on appeal to the county court. The public would never understand how it would be possible for a municipal prosecutor, merely by abstaining from proceeding in a case where his personal client was involved, to find himself questioning the determination of the municipal court in the same matter, with obviously the same facts, before the county court. To encourage such a practice would certainly be to encourage the violation of Canon 6. As we stated before, in Opinion 19, 86 N.J.L.J. 734 (1963):

A lawyer who is an employee should not take employee cases against the company.

The same opinion (No. 289) is found in Drinker, Legal Ethics 298 (1953). Also see Drinker, Legal Ethics 118 (1953) et seq. There, various incidents are described in greater detail which make it obvious that the attorney should not be permitted to do that which he has suggested in this inquiry. At page 119 the language is so positive as to definitely state that a prosecutor may not change sides.

Considering all that has been said in this opinion, this Committee feels that the contemplated action of the attorney would obviously be improper.