Office Relationships - Municipal Court Judge, Municipal Prosecutor, County Assistant Prosecutor

99 N.J.L.J. 1153
December 30, 1976

ADVISORY COMMITTEE ON PROFESSIONAL ETHICS
 
Appointed by the New Jersey Supreme Court
 

OPINION 359

Office Relationships -
Municipal Court Judge, Municipal
Prosecutor, County Assistant Prosecutor

We have been asked whether a municipal court judge may share office space with a county assistant prosecutor of the county in which each serves and whether or not they may become office associates or partners.
We are also asked whether a municipal prosecutor may share offices with or be an associate or partner of a municipal court judge of another municipality.
R. 1:15-5(b) defines the term "office associates" to include those who share common office facilities. See our Opinion 74, 88 N.J.L.J. 357 (1965).
The limitations on practice affecting municipal court judges are found at R. 1:15-1(c):
(c) Judges of Municipal Courts. An attorney who is a judge or acting judge of a municipal court shall not practice in any criminal quasi-criminal or penal matter, whether judicial or administrative in nature, except to perform the official duties of a municipal attorney of another municipality. Nor shall he act as attorney for the municipality or any of the municipalities wherein he is serving or as attorney for any agency or officer thereof; nor practice before the governing body or any agency or officer thereof; nor be ousted in the practice of law, either as partner employer, employee or office associate, with an attorney who is a member of such governing body.

R. 1:15 3(a) provides that "[a]n attorney who is ... in the employ or service of ... [a county prosecutor] ... shall not practice on behalf of any defendant in any criminal quasi-criminal or penal matter." Thus, both a municipal court judge and an assistant to the county prosecutor, if practicing in partnership or association or in an employer-employee status, would each be excluded from any criminal practice. Consequently, a conflict of interest situation is not possible. Nevertheless, we are of the opinion that a county assistant prosecutor should not practice law with a municipal court judge in the county where they both serve. The municipality is the first step in the criminal justice system, requiring the staffs of the municipal and county law enforcement agencies to be in frequent association as criminal matters proceed from arrest to disposition. In the process, appeals from a municipal court are handled by the county prosecutor's staff.
The objective of R. 1:15 is to promote public confidence in the legal profession and in our system of justice. Opinion 185, 93 N.J.L.J. 505 (1970). And see Code of Judicial Conduct, Canon 2B, and Opinion 189, 92 N.J.L.J. 789 (1970). Close association of a member of the prosecutor's staff as either office associate, employee, partner or employer of a municipal court judge sitting in the same county is bound to create an inference of impropriety and undermine confidence in our profession. The assistant prosecutor could disqualify himself on matters emanating from the municipal court. See Opinion 315, 98 N.J.L.J. 822 (1975). However, we doubt that this step would remove the inference that the presoaking and judicial functions were improperly influencing one another through the office relationship of judge and assistant prosecutor.
As to the second question, a municipal attorney is limited by R. 1:15-3(b) in his own municipality only, and the municipal prosecutor must be bound by the same restriction. See R. 1:15-3(c). Hence, a municipal prosecutor can take on the defense of criminal cases in municipalities outside his own, while the municipal court judge of that same municipality is entirely excluded from such practice. Were they to share offices or become partners, associates, or employees of the other, the judge would be sharing in, or at the least benefitting by, the fees from practice forbidden him under the rule. For this reason and the reasons stated in the reply to the first question, we are of the opinion that a municipal prosecutor should not be associated with or employed by the judge of a municipal court located in a municipality other than that one which the municipal prosecutor serves.
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