Can a lawyer (or his firm) defend an indigent criminal client when the lawyer's brother is an investigator in the prosecutor's office?

Plain-English summary

An attorney assigned by the Public Defender's Office to an indigent criminal case asked two questions: whether he or any member of his firm could properly represent the defendant when his brother (an investigator in the prosecutor's office) would not be required to testify, and whether they could do so when the brother's testimony or evidence would be required.

The Committee first set out the bar's duty to accept assignments to defend indigent defendants, quoting Drinker and Canon 4, and describing the statutory framework of the Public Defender (N.J.S. 2A:158A) and the court rules on assignment of counsel (R. 3:27-1 and R. 3:27-2). It cited ABA Informal Opinion 957, which concluded that a lawyer ethically may, and indeed should, accept his share of court appointments to defend indigents. On that basis the Committee found no impropriety in the attorney accepting the assignment.

On the merits of the two questions, the Committee concluded that performing all required legal services is not improper when the brother will not be a witness. But because the profession must avoid not only evil but the appearance of evil, it held it would be improper and unethical for the attorney to represent a defendant in a criminal case where his brother is to testify for the prosecution, citing ABA Opinion 49 (1931). The Committee stated this restriction applies to the attorney's law partners and associates as well.

Currency note

This opinion was issued in January 1970, before New Jersey's September 13, 1971 adoption of the Disciplinary Rules (Code of Professional Responsibility), so the Committee was applying the Canons of Professional Ethics and its own prior opinions. It also predates the 1984 Rules of Professional Conduct and all later revisions. The conflict and appearance-of-impropriety principles it applied are now treated under RPC 1.7, with firm-wide effect under RPC 1.10. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.

Common questions

Q: Can a lawyer defend a criminal case when a close relative works in the prosecutor's office?

A: It turns on whether the relative is a witness. The Committee found no impropriety where the investigator brother would not testify, but held representation improper where the brother is to testify for the prosecution.

Q: Does the restriction reach the lawyer's partners and associates?

A: Yes. The Committee stated that the bar on representing the defendant where the brother is to testify applies to the assigned attorney's law partners and associates as well.

Q: Does having a relative in the prosecutor's office disqualify the lawyer from accepting the indigent assignment at all?

A: No. The Committee found no impropriety in the attorney accepting the Public Defender assignment, emphasizing the bar's duty to defend indigent defendants; the limitation arises only if the brother is to be a witness.

Background and rules framework

The opinion applied the Canons of Professional Ethics and the appearance-of-impropriety principle to a family relationship between defense counsel and a member of the prosecutor's staff, against the backdrop of the bar's duty to accept indigent-defense assignments under the Public Defender statute and the criminal practice rules. In current New Jersey terms the conflict analysis falls under RPC 1.7, imputed to the firm under RPC 1.10.

Citations and references

Statutes:

• N.J.S. 2A:158A-1 to 22 (Public Defender), including N.J.S. 2A:158A-7

Court rules:

• R. 3:27-1 and R. 3:27-2 (assignment of counsel for indigent persons)

Other authorities:

• Drinker, Legal Ethics 62 (1963); Canons of Professional Ethics, Canon 4
• ABA Committee on Professional Ethics, Informal Opinion 957 (1967)
• ABA Committee on Professional Ethics and Grievances, Opinion 49 (1931)
• NJ ACPE Opinion 43, 87 N.J.L.J. 256 (1964)

See also

• NJ ACPE Op. 171: A Defense Lawyer Whose Relative Works in the Probation Department
• NJ ACPE Op. 201: The Father and Former Partner of an Assistant Prosecutor

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp170-1.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.

93 N.J.L.J. 18, January 8, 1970

OPINION 170

Conflict of Interest Assigned Attorney Brother of Prosecutor's Investigator

An attorney assigned to an indigent criminal case by the Public Defender's Office, whose brother is an investigator in the Prosecutor's Office inquires:

May I or any member of the firm with which I am associated, properly represent the defendant when testimony will not be required of my brother?

May I or any member of the firm with which I am associated, properly represent the defendant when evidence or testimony will be required of my brother?

Drinker, Legal Ethics 62 (1963), states:

From the earliest times it has been the practice, when persons accused of crime are indigent, for the court to appoint counsel to defend them. Lawyers have always regarded the acceptance and performance of such service as one of the obligations incident to their professional status and privileges.

Canons of Professional Ethics, Canon 4 provides:

A lawyer assigned as counsel for an indigent prisoner ought not to ask to be accused for any trivial reason, and should always exert his best efforts in his behalf.

The Public Defender is a creature of the Legislature, N.J.S. 2A:158A-1 to 22, whose powers include, inter alia N.J.S. 2A:158A-7:

In selecting deputy public defenders and assistant deputy public defenders or lawyers to be available to represent defendants on a case basis, the Public Defender shall make his selections on a basis calculated to provide the respective defendants with competent counsel in the light of the nature, complexity and other characteristics of the cases, the services to be performed, the status of the matters, and other relevant factors.

Provisions for the assignment of counsel for indigent persons contained in the Rules Governing Criminal Practice provide: R. 3:27-1 as to indictable offenses, the right to have the Office of the Public Defender assign representation; and R. 3:27-2 as to non-indictable offenses, the court shall assign representation. A.B.A. Comm. on Professional Ethics, Informal Opinion 957 (1967) in considering the appointment of a part-time U.S. Commissioner to defend indigents charged with crime in state courts, concludes: that you ethically may - and indeed should - in the absence of special circumstances accept your share of appointments by the state court to defend indigents charged with state offenses.

Having shown the duty and responsibility of members of the bar to accept the assignment as counsel to represent indigent defendants, and the high sentiment expressed in performing this public service, this Committee finds no impropriety in this attorney accepting such assignment from the Public Defender's Office.

In the opinion of the Committee, the performance of all required legal services by the assigned attorney is not improper or unethical by reason of the brother relationship of the assigned attorney and the investigator in the Prosecutor's Office under the facts presented in this inquiry, when testimony will not be required of the brother.

However, because the legal profession must avoid not only all evil, but must likewise avoid the appearance of evil, we are of the opinion that it would be improper and unethical for the attorney to represent a defendant in a criminal case where his brother is to testify for the prosecution. A.B.A. Comm. on Professional Ethics and Grievances, Opinion 49 (1931). This applies to law partners and associates. N.J. Advisory Committee on Professional Ethics, Opinion 43, 87 N.J.L.J. 256 (1964).