Can a full-time municipal police officer who is a licensed lawyer also serve as the municipal prosecutor in the same town?

Plain-English summary

A full-time municipal police sergeant who was also a member of the New Jersey Bar asked whether she could accept appointment to serve simultaneously as municipal prosecutor in the same municipality. The Committee observed that, inherent in the situation, the inquirer would continue her professional association with fellow officers, some of whom report to her, and that police officers bring charges and testify against defendants in municipal court while the prosecutor must refrain from prosecuting charges she knows lack probable cause under RPC 3.8(a).

The Committee framed the question as whether an appearance of impropriety arises, applying the dispositive test of whether an "informed and concerned private citizen" could reasonably find one. It reasoned that municipal prosecutors ordinarily work closely with police, that the manner of presenting facts (the prosecutor's decision) can affect outcomes, and that the public sees prosecutor and police as "on the same team." Here, the Committee noted, the prosecutor would literally be on the same team.

It concluded that an informed citizen could reasonably believe the prosecutor's exercise of discretion in evaluating and processing charges, where colleagues and fellow officers are the complainants, would be seriously inhibited by that ongoing relationship. While it found no prima facie conflict of interest, it held that the specter of an appearance of impropriety so permeated the situation as to preclude the dual service.

Currency note

This opinion was issued in 1993, 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 Treat this page as historical context, not current guidance.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 sitting municipal police officer also be the municipal prosecutor in the same town?

A: No. The Committee concluded the dual service is precluded by the appearance of impropriety, judged by the informed-and-concerned-citizen test.

Q: Did the Committee find an actual conflict of interest?

A: It found no prima facie conflict of interest, but held that the specter of an appearance of impropriety so permeated the situation as to bar the arrangement.

Q: Why did the close police-prosecutor relationship matter?

A: Per the opinion, the public sees prosecutor and police as "on the same team," and an informed citizen could believe the prosecutor's discretion would be seriously inhibited when fellow officers are the complainants.

Background and rules framework

The opinion applied New Jersey RPC 3.8(a) (the prosecutor's duty to refrain from prosecuting a charge known to lack probable cause; Model Rule 3.8) and analyzed the matter under the then-existing appearance-of-impropriety standard (RPC 1.7(c)(2)). The analysis turned on the informed-and-concerned-citizen test from In re Opinion 415 and the practical reality that a full-time officer serving as prosecutor would be "on the same team" as the complaining officers.

Citations and references

Rules of Professional Conduct:

• MR 3.8 / NJ RPC 3.8(a) (prosecutor's duty regarding probable cause)
• 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
• Matter of Inquiry to Advisory Committee, 130 N.J. 431 (1992)

Other opinions cited:

• NJ ACPE Ops. 410 and 400 (prosecutor-police working relationship)

See also

• NJ ACPE Op. 678: Representing an Adversary Attorney in an Unrelated Matter
• NJ ACPE Op. 675: Appearing Before a Board on Which a Non-Lawyer Parent Sits
• 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/2005/acp672-1.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.

2 N.J.L. 535, April 5, 1993

133 N.J.L.J. 1371, April 5, 1993

OPINION 672

Conflict of Interest: Municipal Police Officer Serving as Municipal Prosecutor

Inquirer is a full-time municipal police officer currently holding the rank of sergeant and a member of the New Jersey Bar. She asks whether she may accept an appointment to simultaneously serve as municipal prosecutor in the same municipality.

Inherent in this situation is the continuing professional association of the inquirer with fellow police officers, some of whom may report to and take direction from her. Police officers bring charges and testify against defendants in the municipal court. As municipal prosecutor, the inquirer is obligated to refrain from prosecuting a charge that she knows is not supported by probable cause. RPC 3.8(a). Therefore, the issue is whether an appearance of impropriety arises from inquirer's handling of matters in which her associates, and in some cases subordinates, are involved. The dispositive test is whether an "informed and concerned private citizen," In re Opinion 415, 81 N.J. 318, 325 (1979), could reasonably find an appearance of impropriety in this dual service. Given that inquirer intends to remain as a full-time police officer during her service as municipal prosecutor, the question virtually answers itself. Cf. Matter of Inquiry to Advisory Committee, 130 N.J. 431, 433 (1992).

Under ordinary circumstances, the municipal prosecutor frequently works with the police officers in the municipality. The manner in which facts are presented would be the decision of the prosecutor and frequently the manner of presentation can make a significant difference in the result. Opinion 410, 102 N.J.L.J. 451 (1978). Moreover, the public believes that the prosecutor and the police are, as a practical matter, "on the same team" and inevitably develop a close working relationship with each other. Opinion 400, 102 N.J.L.J. 73 (1978). See also Matter of Inquiry to Advisory Committee, supra, 130 N.J. 431, 434. Here, the municipal prosecutor is literally "on the same team." Therefore, an informed citizen could reasonably believe that the exercise of discretion in evaluating and processing charges where colleagues and fellow officers are the complainants would be seriously inhibited by the on-going relationship which exists between the municipal prosecutor and her fellow police officers. While there may be no prima facie conflict of interest, the specter of an appearance of impropriety so permeates this situation as to preclude the dual service.