Can the law partner of a part-time municipal judge handle civil forfeiture actions for the county prosecutor arising from arrests in the judge's town?

Plain-English summary

The inquirer practiced in a two-lawyer partnership; his partner had recently been appointed a municipal judge. The inquirer asked whether he could be engaged as an independent attorney to represent the county prosecutor in civil forfeiture actions under N.J.S.A. 2C:64-1 et seq. (seeking forfeiture of vehicles, money, real estate, and other contraband), where many of the underlying arrests and seizures occurred in the municipality where his partner now serves as judge. He stressed that the forfeiture actions are civil in nature.

The Committee disagreed that the civil label controlled. Quoting State v. Lowry, it observed that "penal" is a much broader term than "criminal," reaching any punishment or penalty. It concluded that the forfeiture matters, though civil in form, are basically penal in nature, so the prohibition of R. 1:15-1(b) applies to the inquirer and, through R. 1:15-4, to his partner. The Committee limited the bar to the county in which the judge's court is located.

Currency note

This opinion was issued in 1987, before New Jersey's adoption of the 2004 revisions to the Rules of Professional Conduct. 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 Treat this page as historical context, not current guidance.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: Can a municipal judge's law partner do forfeiture work for the prosecutor in the judge's county?

A: Per the opinion, no. The Committee held that forfeiture actions are penal in nature, so R. 1:15-1(b)'s prohibition extends to the judge's partner in that county.

Q: Did the civil character of forfeiture actions make a difference?

A: No. The Committee held that, despite being civil in form, forfeiture matters are basically penal in nature, citing State v. Lowry for the breadth of the word "penal."

Q: How far did the limitation reach?

A: The Committee limited the bar to the county in which the judge's municipal court is located.

Background and rules framework

The opinion applies Rule 1:15-1(b), which restricts practice connected to a judge's court, and Rule 1:15-4, which extends that limitation to the judge's partners, employers, employees, and professional-corporation associates. The Committee's analysis turned on whether statutory forfeiture, though pleaded as a civil action, is penal; relying on State v. Lowry, it found that it is.

Citations and references

Statutes:

• N.J.S.A. 2C:64-1 et seq. (forfeiture of contraband and proceeds)

Court rules:

• R. 1:15-1(b) (limitation on practice connected with a judge's court)
• R. 1:15-4 (extension of the limitation to a judge's partners and associates)

Cases:

• State v. Lowry, 95 N.J. Super. 307 (1967), breadth of the term "penal"

Other opinions cited:

• ACPE Opinion 516, 111 N.J.L.J. 481 (1983)
• ACPE Opinion 359, 99 N.J.L.J. 1153 (1976)
• ACPE Opinion 466, 106 N.J.L.J. 518 (1980)

See also

• NJ ACPE Op. 610: Police-Officer Attorney Defending in His Own Town's Court
• NJ ACPE Op. 627: Second Cousin of a Municipal Judge Serving as Prosecutor

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp602-1.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.

120 N.J.L.J. 251, July 30, 1987

OPINION 602

Partner of Municipal Court Judge Processing Forfeiture Actions on Behalf of County Prosecutor - Application of R. 1:15-1(b)

The inquirer is a member of a law partnership consisting of two lawyers; namely, himself and his partner, who was recently appointed a municipal judge. For approximately five and one half years prior to the date that his partner became a municipal judge, the inquirer also served as a part-time county counsel in the county in which the partnership maintained its law offices. Upon his partner being appointed municipal judge, the inquirer resigned as county counsel pursuant to and by reason of holding of this Committee in Opinion 516, 111 N.J.L.J. 481 (1983). During the course of his duties as county counsel, he was charged with the processing of several civil actions pursuant to N.J.S.A. 2C:64-1, et seq. on behalf of the county prosecutor's office for the forfeiture of motor vehicles, monies, real estate and other contraband seized by law enforcement officers as a result of arrests based upon illegal activities. He further states that many of the arrests and seizures upon which these civil actions were based were made in the municipality in which his law partner now serves as municipal court judge. He anticipates that, should he be engaged as an independent attorney to represent the county prosecutor in the filing of the civil actions at this time, many of such actions would be based upon arrests and seizures made in the very same municipality in which his law partner serves as municipal judge. Additionally, it appears that bail is often fixed through the municipal court in which his law partner serves as judge. We are further advised by the inquirer that the municipal judge can hold probable cause hearings but that, in his opinion, this is unlikely to occur in view of the fact that due to the speedy trial procedures utilized in that county, the municipal court has not held such hearings to date. The inquirer also states that although he would not be involved in the handling of the criminal prosecutions, he would have access to police reports filed concerning the arrests and receipts for property seized. His involvement, therefore, other than the matter of access to the files as set forth herein, would be the matter of initiating and processing the civil actions of forfeiture for the purpose of obtaining a judgment therein.

The inquirer poses the following question:

Whether the law partner of a part-time municipal judge of a municipality may represent the county prosecutor of the county in which the municipality is located as plaintiff's counsel in civil actions to forfeit contraband seized from automobiles stopped by law enforcement offices in such municipality pursuant to N.J.S.A. 2C:64-1 et seq.?

The inquirer cites opinions which he feels are analogous to the inquiry; namely our Opinion 359, 99 N.J.L.J. 1153 (1976), Opinion 466, 106 N.J.L.J. 518 (1980), and Opinion 516, supra., and stresses throughout his memorandum the fact that the actions which he would be instituting are civil in nature.

The word 'penal' is inherently a much broader term than 'criminal' since it pertains to any punishment or penalty and relates to acts which are not necessarily delineated as criminal. State v. Lowry, 95 N.J. Super. 307, 320 (1967).

Therefore, we are of the opinion that the various matters which could be assigned, although relating to civil actions pursuant to the statute, basically are penal in nature and that the prohibition contained in R. 1:15-1(b) applies with equal effect to the inquirer and his law partner. See R. 1:15-4, which provides, in effect, that the limitation imposed on the practice of law by an attorney shall also extend to an attorney who is partner, employer, employee, or an office associate or shareholder in a professional corporation in which the attorney practices. The limitation extends only to the county in which the court of the judge is located.