Can the same lawyer be both the municipal attorney and the municipal prosecutor for the same town?

Plain-English summary

The inquirer asked whether a municipal attorney may also serve the same municipality as municipal prosecutor. The Committee recalled its consistent line of opinions holding that where there is or may be a conflict of interest, the same attorney should not represent two public bodies. It cited Opinion 452 (a municipal prosecutor may not be the partner of the planning board attorney in the same municipality) and Opinion 366 (the same as to the zoning board of adjustment attorney), reasoning that the board's attorney might advise it on matters relevant to proceedings in which the prosecutor could become involved.

The Committee found that rationale no less compelling here. Municipal attorneys draft ordinances enforceable in municipal court and render advice on many matters that are or may become relevant to proceedings the municipal prosecutor handles. Applying the test of whether an "informed and concerned private citizen" could reasonably perceive an appearance of impropriety, the Committee concluded such a citizen could reasonably believe the municipal prosecutor might fail to bring independent judgment to bear in evaluating an alleged ordinance violation. It therefore held that a municipal attorney may not serve the same municipality as municipal prosecutor.

Currency note

This opinion was issued in 1992, before New Jersey's adoption of the 2004 revisions to the Rules of Professional Conduct; the appearance-of-impropriety standard the opinion applied was eliminated from the New Jersey Rules effective January 1, 2004. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule mentioned here.

Common questions

Q: Can a lawyer hold both the municipal attorney and municipal prosecutor roles in one town?

A: No. The Committee held the dual service improper, applying its consistent rule that one attorney should not represent two public bodies where there is or may be a conflict.

Q: Why does serving as municipal attorney create a problem for the prosecutor role?

A: Per the opinion, municipal attorneys draft ordinances enforceable in municipal court and advise on matters that may become relevant to prosecutions, so an informed citizen could reasonably doubt the prosecutor's independent judgment.

Q: What test did the Committee apply?

A: Whether an "informed and concerned private citizen" could reasonably perceive an appearance of impropriety, drawing on In re Opinion 415 and In re Professional Ethics Opinion 452.

Background and rules framework

The opinion analyzed the dual role under the then-existing appearance-of-impropriety standard (NJ RPC 1.7(c)(2); Model Rule 1.7's conflict principles). The analysis turned on the informed-and-concerned-citizen test from In re Opinion 415 and the practical overlap between the municipal attorney's advisory work and the prosecutor's enforcement of municipal ordinances.

Citations and references

Rules of Professional Conduct:

• MR 1.7 / NJ RPC 1.7(c)(2) (appearance of impropriety, since eliminated)

Cases:

• In re Opinion 415, 81 N.J. 318 (1979), the informed-and-concerned-citizen test
• In re Professional Ethics Opinion 452, 87 N.J. 45 (1981), prosecutor barred from partnering with a board attorney
• Higgins v. Advisory Comm. on Professional Ethics, 73 N.J. 123 (1977), "more than a fanciful possibility" standard

Other opinions cited:

• NJ ACPE Ops. 415, 452, and 366 (dual representation of municipal bodies)

See also

• NJ ACPE Op. 672: Municipal Police Officer Serving as Municipal Prosecutor
• NJ ACPE Op. 690: State Police Officer as Municipal Prosecutor
• NJ ACPE Op. 697: Municipal Agency Counsel and a Private Client Conflict

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp662-1.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.

1 N.J.L. 1043, July 13, 1992

131 N.J.L.J. 834, July 13, 1992

OPINION 662

Conflict of Interest: Municipal Attorney Serving Same Municipality as Municipal Prosecutor

The inquirer asks whether a municipal attorney may also serve the same municipality as municipal prosecutor.

This Committee has issued numerous opinions on the ethical concerns affecting the representation of two or more municipal bodies by the same attorney or by partners or associates of the same law firm. We have consistently held that where there is or may be a conflict of interest in a particular situation, the same attorney should not undertake to represent two public bodies. Opinion 415, 103 N.J.L.J. 38 (1979), aff'd In re Opinion No. 415, 81 N.J. 318 (1979). In many circumstances we have held dual representation to be improper.

In Opinion 452, 105 N.J.L.J. 353 (1980), aff'd In re Professional Ethics Opinion, 87 N.J. 45 (1981), we held that even in the absence of a statutory (N.J.S.A. 40:55D-71) prohibition, it would be improper for a municipal prosecutor to be the partner of the planning board attorney in the same municipality. Similarly, in Opinion 366, 100 N.J.L.J. 290 (1977), we held that it would be improper for a municipal prosecutor to be the partner of an attorney for the zoning board of adjustment in the same municipality. The rationale for these opinions was that the attorney for either board might advise it on matters that are relevant to proceedings in which the municipal prosecutor might become involved. In re Professional Ethics Opinion 452, supra, 87 N.J. at 51.

The rationale is no less compelling in the present inquiry. Municipal attorneys, among other things, draft ordinances enforceable in municipal court. They also render advice on myriad matters that are or may become relevant to proceedings in which the municipal prosecutor might become involved. Might a municipal court defendant or, for that matter, an "informed and concerned private citizen," In re Opinion No. 415, supra, 81 N.J. at 325, reasonably believe that the municipal prosecutor might fail to bring independent judgment to bear in evaluating an alleged violation of an ordinance? An affirmative answer is, in our opinion, "more than a fanciful possibility." Higgins v. Advisory Comm. on Professional Ethics, 73 N.J. 123, 129 (1977); In re Professional Ethics Opinion 452, supra, 87 N.J. at 52.

Where, as here, the same attorney serves as municipal attorney and municipal prosecutor, an informed citizen could conclude that the priorities of one or both offices may be compromised. Consequently, we hold that a municipal attorney may not serve the same municipality as municipal prosecutor.