Cop-Lawyers Walk a Rarefied Beat

Plenty of retired cops practice law, but it is a rare breed that juggles both jobs simultaneously. Since 1967, the New Jersey Supreme Court has said people can follow the two paths, provided there's no overlap in responsibilities. It's a delicate balance, but if attorneys and police departments are vigilant about avoiding potential conflict-of-interest pitfalls, the dual roles can add up to a most satisfying career.

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In the competitive world of criminal defense, one thing makes Gary Daniels stand out: simultaneous experience in law enforcement. In fact, Daniels splits his days between defending clients in court and running a 33-member police department. He is director of public safety for the Burlington County Bridge Commission Police Department, which has jurisdiction over two crossings to Pennsylvania. Plenty of retired cops practice law, but it is the rare breed that juggles both jobs. And since 1967, the New Jersey Supreme Court has said they can do it, provided there’s no overlap. Daniels, a Mount Holly solo practitioner, must decline cases in Palmyra and Burlington City — the two municipalities where his department operates — but he may practice law anywhere else. Cop-lawyers thus have a longer leash than municipal prosecutors, who since 2000 have been barred from criminal defense work in counties where they prosecute. Daniels says that makes sense, because his police job does not involve the practice of law. “My representation of private clients presents no direct conflict or the appearance of a conflict,” he says. Since he is a director of public safety and not a police chief, he does not file complaints, act as a witness or testify in cases brought by his commission, Daniels says, and his interaction with other police is limited by the commission’s statutory jurisdiction, which bars his officers from providing backup to other departments. Nevertheless, when Daniels was hired in January, the Bridge Commission did some due diligence. Its lawyer, Samuel Moulthrop, a partner at Riker, Danzig, Scherer, Hyland & Perretti of Morristown, advised in a March 1 letter that Daniels’ criminal defense work was ethical as long as he stayed out of the Palmyra and Burlington City courts and did not take cases where the commission or its employees were involved. Specifically, the moonlighting did not flout newly adopted Rule of Professional Conduct 1.8(k). The rule says lawyers employed by public entities should not represent clients if it would pose a risk that “the lawyer’s responsibilities to the public entity would limit the lawyer’s ability to provide independent advice or diligent and competent representation to either the public entity or the client.” That ethics rule squares with the Supreme Court’s Advisory Committee on Professional Ethics Opinion 111 (1967), which said a police officer-cum-lawyer could not handle criminal cases arising from the municipality where he is on the force. That opinion also barred defense work in that municipality, even after the police officer’s retirement, in cases arising during his employment. The committee similarly held in Opinion 610 (1987) that a cop-lawyer could not represent a client accused of a health code violation in the municipality where he is employed as a police officer. In 1992, the Supreme Court extended that prohibition to a law firm where the police officer practiced. To allow Cherry Hill police officer John Dell’Aquilo’s firm to defend criminal defendants in Cherry Hill Municipal Court, or in criminal matters arising in that town, would create an appearance of impropriety, the justices said in In re Inquiry to the Advisory Committee on Professional Ethics Index No. 58-91, 130 N.J. 431. Dell’Aquilo is still on the Cherry Hill force and represents clients occasionally in local courts outside that municipality. He says he always discloses his police affiliation to his adversary and has never faced a challenge. DIFFERENT STROKES Other police officers who are lawyers take different views of their dual roles. Richard Mattoon, who retired in April of 2003 as police chief of Peapack-Gladstone, conducted house closings while on the force but stayed away from defense work. Soon after he passed the bar in 1990, he says, a neighbor approached him for representation for a traffic ticket. Mattoon asked the advice of Somerset County Prosecutor Nicholas Bissell Jr., who told him not to do any defense work. Roy Whitmore, whose 8 p.m. to 4 a.m. schedule on the Merchantville police department is conducive to a second career, asked for the advice of municipal court and Superior Court judges on conflicts when he began practicing. They told him he could practice criminal or civil litigation anywhere but in Merchantville, where he should restrict his practice to transactional matters like wills. Unlike Dell’Aquilo, Whitmore, of counsel to Jerrold Colton’s law office in Voorhees, does not disclose his police affiliation to adversaries because he wants to avoid any suggestion that he is trading on his connection to law enforcement. At Perrotta, Fraser, Forrester & Panich in Clark, two lawyers have police pedigrees. Scotch Plains police officer Brian Donnelly, who is of counsel, focuses on real estate transactional work. Eugene Perrotta, who retired from the Union Township Police Department in 2000, conducted a defense practice while on the force but generally stayed out of his home county of Union. Perrotta says he imposed a regional restriction on his practice even though he feels no discomfort in cross-examining other police officers. “I think I just never wanted to put myself in a situation that I wasn’t comfortable with,” he says. PULLING BOTH WAYS Some legal-ethics experts find the idea of a police officer who is a defense lawyer a bit problematic. John Leubsdorf, who teaches professional responsibility at Rutgers Law School-Newark, says problems could develop if the client has committed crimes in multiple jurisdictions, including the one where the lawyer is a cop. That situation might not be apparent at the outset of representation. He says such attorneys and their police departments should be vigilant about avoiding such pitfalls. Howard Erichson, who teaches ethics at Seton Hall University School of Law, says the lawyer might be seen as trading on an advantage of added credibility or connections with law enforcement. The dual role also might limit the zealousness of the attorney’s representation out of concern for the impact on his own job. “Maybe someone would say it pulls in both directions, so it’s OK, but conflicts of interest don’t work that way,” Erichson says. But Ted Rosenberg, a municipal prosecutor who regularly faces Daniels as an adversary, finds no conflict in the head of a police department representing defendants. “He zealously represents his client when his client is a defendant, and I presume he zealously acts as the public safety director for the bridge commission,” says Rosenberg, who prosecutes in Palmyra and Westampton.

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