May a municipal attorney defend a criminal defendant charged with an offense committed in the same municipality the attorney represents?

Plain-English summary

The inquiry asked whether a municipal attorney could represent a defendant in a criminal case where the alleged offense was committed in the municipality the attorney represented, noting that such representation would in most cases require the municipal attorney, as defense counsel, to cross-examine police officers of the municipality called as witnesses against his client.

The Committee said such representation would be unethical, citing the underlying principles set out in its Opinions 52 and 53 and the cases there cited. A municipal attorney is called on to render advice and help in all matters of municipal concern, including the enforcement of the law, so representing a person charged with criminal dereliction within the municipal limits requires him to undertake a conflicting task he may not ethically do.

The Committee added that the attorney's public employment gives him access to information and material that may give him an unfair advantage in representing a private client where his municipality is involved, and that whether he actually avails himself of that opportunity is beside the point: while charged with acting for the municipality, he should not assume an equivocal position for private gain. Quoting its Opinion 19, the Committee observed that it is improper for a member of the bar at the same time to act in the interest of a client and against the same client, even in distinct areas, no less so where the client is a public body, given both the loyalty owed and the danger that familiarity with the client's affairs may impart information usable against that client.

Currency note

This opinion was issued in September 1965, 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 conflict principles as developed in the Committee's Opinions 52, 53, and 19. These subjects are now treated under RPC 1.7 (concurrent conflicts) and RPC 1.11 (current and former government officers and employees). Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific requirement mentioned here.

Common questions

Q: Can a municipal attorney defend a criminal case in his own municipality?

A: No. The Committee held such representation unethical, because the offense arose in the municipality the attorney serves and defending it conflicts with his duty to help enforce the law.

Q: What if the lawyer would not actually use any inside information?

A: The Committee said that is beside the point: the access his public employment gives him could provide an unfair advantage, and he should not assume an equivocal position regardless of whether he avails himself of it.

Q: Why was cross-examining police a concern?

A: Defending the case would in most instances require the municipal attorney to cross-examine the municipality's own police officers called as witnesses, putting him against the very public body he serves.

Background and rules framework

The opinion applies the Canon 6 conflict-of-interest principles the Committee developed for municipal attorneys (Opinions 52, 53, and 19), barring a municipal attorney from defending criminal matters arising in his own municipality. In current New Jersey terms, the concurrent-loyalty conflict maps to RPC 1.7 and the government-lawyer dimension to RPC 1.11.

Citations and references

Other authorities:

• Canons of Professional Ethics, Canon 6 (conflicting interests)

Other opinions cited:

• NJ ACPE Opinions 52 and 53, 87 N.J.L.J. 610 (1964), and Opinion 19, 86 N.J.L.J. 734 (1963): a lawyer may not act both for and against the same client, including a public body

See also

• NJ ACPE Op. 106: County Attorneys and Prosecutors Representing Private Clients
• NJ ACPE Op. 104: A Prosecutor Defending the Officer in the Same Trial
• NJ ACPE Op. 98: An Intermunicipal Sewerage Authority's Attorney

Source

• Landing page: https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp84-1.html

Original opinion text

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

88 N.J.L.J. 629
September 30, 1965

OPINION 84

Municipal Attorneys Defending Offenders

May a municipal attorney represent a defendant in a criminal case where the alleged offense was committed in the municipality which the attorney represents? The inquiry points out that such representation would, in most cases, require the municipal attorney, acting as counsel for the defendant, to cross-examine police officers of the municipality called as witnesses against his client.

In our opinion such representation would be unethical. We have many times had occasion to set forth the underlying principles upon which this conclusion is based. Among others, see N.J. Advisory Committee on Professional Ethics, Opinions 52 and 53, 87 N.J.L.J. 610 (1964), and the cases there cited. A municipal attorney is called upon to render advice and help in all matters of municipal concern, including the enforcement of the law. To represent a person charged with criminal dereliction within the municipal limits requires the attorney to undertake a conflicting task. This he may not ethically do.

A further point is worthy of mention. His public employment gives the attorney access to information and material which may give him an unfair advantage in his representation of a private client where his municipality is involved. Whether he avails himself of this opportunity is essentially beside the point. While he is charged with the important responsibility of acting for the municipality, he should not allow himself, for private gain or otherwise, to assume an equivocal position. See especially N.J. Advisory Committee on Professional Ethics, Opinion 19, 86 N.J.L.J. 734 (1963), where we had occasion to observe, in an only slightly different context:

It is improper for a member of the bar at the same time to act in the interest of a client and against the same client, even though the areas of representation are entirely distinct. This is no less true where the client is a public body. The loyalty which an attorney owes a client should not be subjected to the weakening temptation inherent in such a situation. Quite obviously the profession as a whole would suffer in the eyes of the public were this practice to be condoned. Furthermore, there is a real danger that the familiarity with a client's affairs resulting from the representation of a client in a particular matter may impart to the attorney information which he may use to advantage in the action against the same client and which he would not have come by except for the first representation.