Can a former assistant county prosecutor defend someone indicted from an investigation his old office ran, if he played no part in it and had already resigned?

Plain-English summary

The Committee was asked whether an attorney who was an assistant county prosecutor when a criminal investigation was conducted by that office may, after resigning, defend one of the persons indicted as a result of that investigation, where he played no part in the investigation and had resigned two months before the alleged irregularities were brought to light.

The Committee reasoned that Canon 36 of the Canons of Professional Ethics would bar the representation if he had participated in the investigation, and that the bar extends to this situation as well, citing ABA Committee on Professional Ethics and Grievances, Opinion 134 (1935): a lawyer retiring from public employ cannot utilize or seem to utilize the fruits of former professional relationships in private practice involving a matter investigated or passed upon by himself or others of the public legal staff while he was identified with it. Because a primary purpose of the ethics rules is to preserve the reputation of lawyers, and because the public might know of the investigation and indictment without knowing the date the inquirer resigned or whether he had been involved, the Committee, invoking its Opinion 6 that it is necessary to avoid even the appearance of wrongdoing, concluded it would be improper for the inquirer to represent the accused.

Currency note

This opinion was issued in May 1971, 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, an ABA opinion, and its own prior opinions. It also predates the 1984 Rules of Professional Conduct and all later revisions. The former-government-lawyer and appearance-of-impropriety principles it applied are now treated under RPC 1.11 and RPC 1.9. Treat this page as historical context, not current guidance.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 former prosecutor defend someone indicted by his old office?

A: Not where the indictment grew out of an investigation by that office. The Committee held it improper even though the lawyer played no part and had resigned beforehand.

Q: Does non-involvement in the investigation save the representation?

A: No. The Committee stressed that the public might not know the lawyer's resignation date or his non-involvement, so the appearance of using the fruits of the former office had to be avoided.

Q: What authority did the Committee rely on?

A: Canon 36 of the Canons of Professional Ethics, ABA Opinion 134 (1935) on retiring from public employ, and its own Opinion 6 on avoiding the appearance of wrongdoing.

Background and rules framework

The opinion applied Canon 36 of the Canons of Professional Ethics, as elaborated by ABA Opinion 134 (1935), barring a former government lawyer from handling a matter his office investigated, together with the appearance-of-impropriety principle. In current New Jersey terms the analysis falls under RPC 1.11 and RPC 1.9.

Citations and references

Rules of Professional Conduct:

• Canon 36, Canons of Professional Ethics (former public employment), as in effect 1971; now MR 1.11 / 1.9 and NJ RPC 1.11 / 1.9

Other opinions cited:

• ABA Committee on Professional Ethics and Grievances, Opinion 134 (1935)
• NJ ACPE Opinion 6, 86 N.J.L.J. 718 (1963)

See also

• NJ ACPE Op. 276: Former Assistant Prosecutor Defending One Investigated Before Resignation
• NJ ACPE Op. 252: Former Prosecutor Representing a Convicted Policeman on Appeal
• 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/acp207-1.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.

94 N.J.L.J. 451, May 27, 1971

OPINION 207

Conflict of Interest Assistant Prosecutor Defending Indicted After Resigning

The question has been raised as to whether an attorney who was an assistant county prosecutor when a criminal investigation was conducted by that office may, after resigning as such assistant prosecutor, defend one of the persons indicted as a result of that investigation if:

A) he played no part in the investigation; and

B) he resigned as assistant prosecutor two months before the alleged irregularities were brought to light by the investigation.

Canons of Professional Ethics, Canon 36 would prevent this representation if he had participated in the investigation. That this provision extends to the present situation is clearly set forth in A.B.A. Comm. on Professional Ethics and Grievances, Opinion 134 (1935), wherein it is stated:

A lawyer retiring from public employ cannot utilize or seem to utilize the fruits of the former professional relationships in subsequent private practice involving a matter investigated or passed upon either by himself or others of the public legal staff during the time he was identified with it.

One of the primary purposes of the rules of professional ethics is to preserve and protect the reputation of lawyers. The general public might well know of the investigation and indictment without knowing the exact date that the inquirer resigned as assistant prosecutor or without knowing whether or not the inquirer had been involved in the particular investigation. N.J. Advisory Committee on Professional Ethics, Opinion 6, 86 N.J.L.J. 718 (1963), states:

...To maintain public confidence in the bar, it is necessary not only to avoid actual wrongdoing, but even the appearance of wrongdoing.

It would, therefore, be improper for the inquirer to represent the accused.