Older New Jersey ethics opinions are replete with the observation that, in the public perception, prosecutors and police officers are “on the same team” and inevitably develop a close working relationship with each other. The old “appearance of impropriety” rule contained in RPC 1.7(a)(2) therefore precluded a lawyer from acting as a prosecutor in a number of situations involving police officers with whom the prosecutor regularly worked, including situations in which a police officer was a defendant in a criminal matter. As noted in ACPE Opinion 394, 101 N.J.L.J. 417 (1978), “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… . [T]he profession “must avoid not only all evil, but must likewise avoid the appearance of evil.” When the Supreme Court abolished the “appearance of impropriety” rule in 2004, it did so not because it believed that public perceptions had changed, but because interpretation and application of the rule in all professional contexts was too indefinite and malleable to be fairly applied. It even declined to limit the rule to government lawyers, regarding whom avoiding the appearance of impropriety is particularly important.

The Legislature, however, would effectively revive the principle behind the rule in a very specific and particularly difficult context: the role of the county prosecutor in investigating deaths involving a police officer. In 2018, there were 12 police-involved fatal shootings in New Jersey. S-1036, which has passed both houses and has been presented to the governor, provides that the attorney general shall automatically supersede the county prosecutor for the purpose of conducting any investigation, criminal action or proceeding concerning any death during an encounter with a law enforcement officer, or while the decedent is in custody.

Rob Nixon, the director of government affairs for the New Jersey State Policemen's Benevolent Association, which opposes the bill, told the Assembly Appropriations Committee that “the message this bill is sending is we can't be trusted and some higher entity in Trenton can do a better job.” Ironically, this statement demonstrates the need for the provision. The “we” in this case is the team of the local prosecutor and the police—a team whose effectiveness is normally a lynchpin of effective law enforcement, but in this special circumstance presents the specter of divided loyalties.

Attorney General Gurbir Grewal, who in his first year in office has taken significant and commendable steps to promote police accountability, also opposes the bill. Noting that he already has the discretion to intervene should he see fit, the attorney general is concerned that sending in state officials could communicate to the public a lack of trust in county prosecutors and prevent local investigators from going to the scene and hinder the ability to gather key evidence.

It is the very fact that the attorney general currently has discretion on whether or not to take over the investigation of a police-related death, however, that can create an often unwarranted adverse public perception against the county prosecutor if the AG should decide to do so. A bright-line rule actually serves the interests of county prosecutors by making clear that there is no particularized concern about an individual prosecutor or his office when a police-related death is routinely handled by the Attorney General's Office. And the logistical issues concerning the immediate investigation and gathering of evidence can be addressed through appropriate regulations and guidelines that allow local investigators to do their job at the scene, while still leaving to the lawyers in the Attorney General's Office the task of assessing that evidence and ultimately determining what further action may be required.

We appreciate the attorney general's concern about maintaining the well-deserved reputation of our county prosecutors for integrity, but there is absolutely no dishonor when any lawyer recognizes that an ongoing professional relationship creates a conflict of interest. We all have them. It is our ethical duty to weigh and deal with conflicting loyalties, not to deny their existence. The “appearance of impropriety” rule may have been unworkable as a general rule, but we agree with the Legislature that, in the very narrow circumstance of a county prosecutor investigating a death involving a police officer with whom the prosecutor regularly works, it is both practical and would instill public confidence if the attorney general takes over the investigation as a matter of course. We urge the governor to sign the bill.