Conflict of Interest: Municipal Prosecutor Prosecuting Police Officer

101 N.J.L.J. 417
May 4, 1978

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

OPINION 394

Conflict of Interest: Municipal
Prosecutor Prosecuting Police Officer

The inquirer asks whether a municipal prosecutor should act as prosecutor for the State in a municipality where he serves as prosecutor and where the defendant is a police officer or other officer or employee of the same municipality.
This Committee previously decided the "other side of the coin" in Opinion 140, 91 N.J.L.J. 805 (1968), in which it was held that
no member of the city's law department who prosecutes cases in the municipal court should be permitted to defend a police officer in the same court. In Opinion 351, 99 N.J.L.J. 798 (1976), we held that a municipal attorney should not represent the municipal police officer on a probable cause hearing in the municipal court. In both instances, therefore, the police officer had the statutory right to engage independent counsel at the cost and expense of the municipality.
We are now asked whether the municipal prosecutor may prosecute the case against the police officer. If it is unethical for the municipal prosecutor to prosecute a police officer of the
same municipality, it will then be necessary for the municipality to engage a special prosecutor to prosecute the police officer and to engage independent counsel to defend the police officer.

The inquirer persuasively points out that 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. Conceivably, the public would have the tendency to believe that the municipal prosecutor would be less than zealous in his prosecution of a municipal police officer. In Opinion 88, 89 N.J.L.J. 49 (1966), we pointed out that the profession "must avoid not only all evil, but must likewise avoid the appearance of evil." The question in Opinion 351, 99 N.J.L.J. 798 (1976), was whether a municipal attorney might represent a municipal police officer on a probable cause hearing in the same municipal court. The opinion took for granted without raising a question that the assistant municipal prosecutor of the municipality would present the State's case against the police officer. The question as to the propriety of the municipal prosecutor presenting the State's case having now been directly raised, we herewith decide that it is unethical for the municipal prosecutor to act as prosecutor for the State in a case in the municipality where he serves as prosecutor and where the defendant is a police officer or other officer or employee of the same municipality. We leave it to the discretion of the municipality as to whether or not to engage and pay for independent counsel as special prosecutor or to request the county to supply a special prosecutor so as to eliminate the double expense which would ensue if the municipality must engage independent counsel to defend the police officer and pay a special prosecutor to prosecute the police officer.
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