Can a lawyer who regularly represents a town's police officers, including the complaining-witness officer, defend a DUI defendant in that town's municipal court?

Plain-English summary

The inquiry concerned an attorney's representation, in municipal court, of an individual charged with driving under the influence (N.J.S.A. 39:4-50). The attorney had, on five separate occasions, represented five of the municipality's police officers (out of a 26-officer force), and twice had represented the very officer who was the complaining witness in the pending case. That most recent representation concluded in May 1978, and the bill for those services remained unpaid.

The Committee held the representation improper. It relied on Opinion 113, which had addressed an attorney proposing to represent the PBA in a municipality while also representing lay defendants before that municipality's municipal court. As Opinion 113 explained, the ethical problem arises once the attorney for the police appears representing other defendants on complaints made by, or where the witness is, the police officer, because some will always believe that success at trial came from unfair help and assistance from the police officer and the PBA.

The Committee concluded that the rationale of Opinion 113 applies with equal, if not greater, force here, where the attorney had specifically represented the complaining witness and, with some regularity, other patrolmen of the municipality.

Currency note

This opinion was issued in 1978, before New Jersey's 1984 replacement of the Disciplinary Rules by the Rules of Professional Conduct and the later revisions to those rules. In current New Jersey terms the analysis corresponds to RPC 1.7 (conflicts with a current or recent client) and RPC 1.9 (duties to former clients). Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Why couldn't the lawyer defend the DUI case?

A: The opinion held it improper because the lawyer had represented the complaining-witness officer and other officers of the same municipality, creating the perception that any acquittal came from unfair help by the police.

Q: Did it matter that the officer's bill was still unpaid?

A: The opinion noted the most recent representation of the complaining-witness officer ended in May 1978 with the bill unpaid, underscoring how recent and live the relationship was.

Q: What earlier opinion controlled?

A: Opinion 113, which barred a lawyer who represents a municipality's PBA from also defending lay clients on complaints brought by, or with, those police officers.

Background and rules framework

The opinion applied the conflict-of-interest principles of Opinion 113 to a lawyer who had represented the complaining-witness police officer and other officers of the same force while now defending a client against a charge resting on that officer's complaint. In current New Jersey terms the analysis corresponds to RPC 1.7 and RPC 1.9.

Citations and references

Rules of Professional Conduct:

• MR 1.7 / NJ RPC 1.7 (conflicts of interest)
• MR 1.9 / NJ RPC 1.9 (duties to former clients)

Statutes:

• N.J.S.A. 39:4-50 (driving under the influence)

Cases:

• State v. Galati, 64 N.J. 572 (1974)

Other opinions cited:

• NJ ACPE Opinion 113, 90 N.J.L.J. 473 (1967); Opinion 377, 100 N.J.L.J. 698 (1977)

See also

• NJ ACPE Op. 410: Municipal Prosecutor Prosecuting Police at a Departmental Hearing
• NJ ACPE Op. 496: Prosecutor's Staff Privately Represented by the County Criminal Defense Bar

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp404-1.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.

102 N.J.L.J. 205, August 31, 1978

OPINION 404

Conflict of Interest - Former Attorney for Police Officers Representing Others in Municipal Court

This inquirer relates to the propriety of an attorney representing in a municipal court an individual charged with driving under the influence of alcohol N.J.S.A. 39:4-50. The attorney has represented on five different occasions five of the individual police officers of the same municipality out of a total police force of 26. On two occasions, the attorney represented the police officer who is the complaining witness in the pending case. His most recent representation of this officer concluded in May 1978, and in fact, the bill for services rendered to that police officer still remains unpaid.

In our opinion the representation of the defendant in the pending case by the attorney is improper. The reasons are basically set forth in our prior Opinion 113, 90 N.J.L.J. 473 (1967) dealing with an attorney proposing to represent the PBA in a municipality while also representing lay defendants in matters before the municipal court of that municipality. In that case we stated:

The real ethical problem is created once the attorney representing the PBA and its members, directly or indirectly, appears in Court representing other defendants on complaints made by the police officer, or complaints where the police officer is called as a witness for the complainant. In the minds of some, and outspoken by others, will always be the belief that success in the trial was achieved by unfair help and assistance from the police officer and the PBA.

The rationale of that opinion applies with equal, if not greater, force to this situation where the attorney in question, while not representing the P.B.A., has specifically represented the complaining witness and, with some regularity, has represented other patrolmen of the municipality. See also, our Opinion 377, 100 N.J.L.J. 698 (1977), and State v. Galati, 64 N.J. 572 (1974).