In New Jersey, can a lawyer who is a State Police officer also serve as a municipal prosecutor?

Plain-English summary

Opinion 690 considered whether the Rules of Professional Conduct permitted a lawyer who was a member of the New Jersey State Police to act as a municipal prosecutor in a municipality with its own full-time police force. The Committee concluded that the dual service raised an appearance of impropriety within the meaning of RPC 1.7(c)(2) and would preclude the prosecutor from exercising the independent professional judgment contemplated by RPC 3.8.

The Committee applied the principle that counsel for the public must avoid even the appearance of impropriety (In re Opinion 415), asking whether an informed and concerned citizen could reasonably find an appearance of impropriety in the dual role. It overruled two earlier unpublished letter determinations (ACPE Docket Nos. 65-84B and 10-90C) that had found such dual service permissible, and relied on its published Opinion 672, which held that a local police officer could not simultaneously serve as municipal prosecutor in the same town because the public believes the prosecutor and police are on the same team.

The Committee weighed two arguable distinctions: that a State Police officer is not strictly a co-worker, superior, or subordinate of the municipal officers who testify in the municipal court, and that a municipality with its own police force would less often call State Police officers to testify there. It found neither distinction sufficient. Regardless of the uniform's color, the Committee reasoned, the public believes law enforcement officers of whatever type are on the same team as prosecutors, and a municipal prosecutor must regularly assess the credibility of evidence offered by law enforcement officers to determine independently, as RPC 3.8 requires, whether probable cause exists. The Committee concluded that public confidence in a prosecutor's independent professional judgment would be undermined by such dual service.

Currency note

This opinion predates New Jersey's 2004 revisions to the Rules of Professional Conduct (the available mirror does not display the opinion's issuance date; by its position in the chronological opinion sequence it falls just before Opinion 691 of January 2001). Significantly, the opinion's analysis rests on the "appearance of impropriety" standard then codified at RPC 1.7(c), which New Jersey abolished effective January 1, 2004 on the recommendation of the Supreme Court's Commission on the Rules of Professional Conduct. Treat this page as historical context, not current guidance, and verify the current Rules of Professional Conduct, which no longer contain the appearance-of-impropriety provision the opinion applied, before relying on anything stated here.

Common questions

Q: Did the Committee allow a State Police officer to serve as a municipal prosecutor?

A: No. The opinion concluded the dual service created an appearance of impropriety under the then-existing RPC 1.7(c)(2) and would preclude the independent judgment RPC 3.8 requires.

Q: Why did the State Police officer's separate chain of command not save the arrangement?

A: The opinion reasoned that, regardless of the type of officer, the public believes law enforcement officers are on the same team as prosecutors, and a prosecutor who is himself an officer might not be seen as able to assess fellow officers' credibility with the required independence.

Q: Is this opinion still good guidance?

A: It should be treated as historical. The opinion's core basis, the appearance-of-impropriety standard at RPC 1.7(c), was abolished in New Jersey effective January 1, 2004, so the current rules no longer contain the provision the opinion applied.

Background and rules framework

The opinion interpreted the then-existing RPC 1.7(c)(2), New Jersey's "appearance of impropriety" provision applicable to government lawyers, together with RPC 3.8 (the special responsibilities of a prosecutor, including RPC 3.8(a)'s probable-cause duty). The analysis turned on the public-perception test drawn from In re Opinion 415 and on the Committee's prior Opinion 672. New Jersey eliminated the appearance-of-impropriety standard in its 2004 rule revisions, so the framework the opinion applied is no longer part of the New Jersey Rules.

Citations and references

Rules of Professional Conduct:

• MR 1.7 / NJ RPC 1.7(c)(2) (the then-existing "appearance of impropriety" provision; abolished in New Jersey effective January 1, 2004)
• MR 3.8 / NJ RPC 3.8, 3.8(a) (special responsibilities of a prosecutor; probable-cause duty)

Statutes:

• N.J.S.A. 53:2-1 (powers and duties of the State Police)

Cases:

• In re Opinion 415, 81 N.J. 318 (1979) (counsel for the public must avoid the appearance of impropriety; informed-citizen test)

Other opinions cited:

• ACPE Opinion 672, 133 N.J.L.J. 1371 (1993): a local police officer may not simultaneously serve as municipal prosecutor in the same town
• ACPE Docket Nos. 65-84B (1984) and 10-90C (1990): earlier unpublished letter determinations permitting the dual service, overruled by this opinion

See also

• NJ ACPE Op. 697: Municipal Agency Counsel and Private Clients
• ABA Formal Op. 97-405: Conflicts in Representing Government Entities

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2005/acp690-1.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 mirror does not display a dateline for this opinion; the linked official source controls.

OPINION 690

State Police Officer Acting as Municipal Prosecutor

The inquirer asks whether the Rules of Professional Conduct permit a lawyer who is a member of the New Jersey State Police to act as a municipal prosecutor in a municipality that employs its own full-time police force. For the reasons set forth below, we conclude that this dual service raises an appearance of impropriety within the meaning of RPC 1.7(c)(2), and would preclude a prosecutor from exercising independent professional judgment in criminal cases as contemplated by RPC 3.8.

Counsel for governmental entities are held with particular vigor to standards of propriety and the absence of conflict of interests. The governing principle applied to inquiries in this area is that counsel for the public must conduct themselves and their practice so as to avoid the appearance of impropriety. In re Opinion 415, 81 N.J. 318, 321 (1979). The dispositive test is whether an informed and concerned citizen, id. at 325, could reasonably find an appearance of impropriety in this dual role of municipal prosecutor and law enforcement officer. We have not addressed the precise issue presented by this inquiry in a published opinion, although we have, in ACPE Docket No. 65-84B (October 31, 1984) and ACPE Docket No. 10-90C (March 2, 1990), issued unpublished letter determinations that such dual service was permissible. For the reasons stated in this opinion, we overrule those prior determinations.

In the most closely analogous published opinion, we determined in Opinion 672, 133 N.J.L.J. 1371, 2 N.J.L. 535 (1993), that a member of a local police department could not simultaneously serve as municipal prosecutor in the same town. We noted that:

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... .

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. 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. 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.

There are two arguable distinctions between the facts of Opinion 672 and the present inquiry. First, the inquirer, as an officer of the State Police, is not, strictly speaking, a co-worker, superior, or subordinate of municipal police officers who are likely to be called upon to testify in municipal court, and thus would not present the same type of conflict described in Opinion 672. Second, the fact that the municipality in question has its own full-time police force means that the occasions in which an officer of the State Police, with whom the inquirer clearly does have a direct working relationship, is called to testify in a proceeding in the municipal court in question would be reduced, thus mitigating the possibility of conflict.

Upon careful reflection, we do not believe that either distinction is sufficient to merit a different conclusion from that reached in Opinion 672. Regardless of the color of the uniform they wear, the public believes that law enforcement officers, of whatever type, are on the same team as prosecutors. While it is true that this perception of interdependence would probably exist to some extent regardless of whether the prosecutor was himself a uniformed law enforcement officer, it creates an atmosphere that warrants special caution against any further intrusions into public confidence in the independent judgment of the prosecutor, free from any biases that might be created by the prosecutor's own personal interests.

A municipal prosecutor is regularly called upon to assess the credibility of evidence offered by law enforcement officers in order to make an independent determination, as required by RPC 3.8, as to whether probable cause exists for prosecution. When the prosecutor is himself a uniformed and armed member of the police force (whether state or local), we think the public might reasonably conclude that he could not properly assess the credibility of brother or sister police officers with the required independence. While it may be true that there is no direct chain of command between a state police trooper and a municipal police officer, they perform essentially identical functions within their respective geographical jurisdictions, and have equivalent professional interests in advocating for the criminal prosecution of defendants they arrest. See generally N.J.S.A. 53:2-1 (powers and duties of State Police in general). In appropriate circumstances the state and local police forces cooperate and coordinate their activities. Id. It might therefore be asking too much for a police officer, acting as prosecutor, to question the veracity, conduct or expertise of another police officer. More to the point for purposes of RPC 1.7(c)(2), public confidence in the independent professional judgement of a prosecutor would be undermined by such dual service.