Can a lawyer defend criminal cases in the same county where his spouse serves as an assistant prosecutor?

Plain-English summary

The inquirer asked whether an attorney whose wife is an assistant prosecutor, but who is neither his partner nor shares office space with him, should be precluded from practicing criminal law in that county.

The Committee concluded that representing defendants in criminal matters in a county where one's wife is an assistant prosecutor would be improper, because the relationship of the two attorneys would place an undue, and perhaps impossible, burden on each attorney's duty to guard the confidences of clients (DR 4-101, EC 4-1 and 4-4). It cited a New York County determination (Question 461 (1957)) finding impropriety where attorneys sharing office space represented opposing litigants, and an ABA informal opinion (692) that a criminal-practice firm could not ethically employ, in a confidential capacity, the wife of a police detective. The Committee noted further questions under DR 5-101 (personal interests impairing professional judgment), read with the admonition to avoid even the appearance of impropriety, but said it did not decide the conflict question because the representation was improper on the confidentiality ground. It distinguished its Opinions 191 and 201 (former partners who were close kin barred from defending where the relative was prosecutor) as involving former partners, which was not this situation, and made clear it was not holding that related lawyers may never represent conflicting interests, though such representation should be undertaken, if at all, with extreme caution.

Currency note

This opinion was issued in 1972, before New Jersey's adoption of the 2004 revisions to the Rules of Professional Conduct, and predates the 1984 replacement of the Disciplinary Rules by the RPCs. The confidentiality and conflict principles it applied (DR 4-101, DR 5-101) are now treated under RPC 1.6 and RPC 1.7. Treat this page as historical context, not current guidance.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 criminal cases where his spouse is a prosecutor in the same county?

A: Under this opinion, no. The Committee found it improper because of the burden the marital relationship places on each lawyer's duty to protect client confidences.

Q: Did it matter that they were not partners and did not share an office?

A: The Committee still found the representation improper; the marital relationship itself created the confidentiality burden, independent of any shared practice.

Q: Did the Committee bar all related lawyers from opposing each other?

A: No. It said it was not holding that lawyers with a blood or marital relationship may never represent conflicting interests, but that such representation should be undertaken, if at all, with extreme caution.

Background and rules framework

The opinion applied DR 4-101 (confidences) and DR 5-101 (personal-interest conflicts), with the appearance-of-impropriety admonition, to a spouse of a prosecutor. In current New Jersey terms the analysis falls under RPC 1.6 and RPC 1.7.

Citations and references

Rules of Professional Conduct:

• DR 4-101 (with EC 4-1, 4-4) and DR 5-101, as in effect 1972; now MR 1.6 / 1.7 and NJ RPC 1.6 / 1.7

Other opinions cited:

• NJ ACPE Opinions 191, 94 N.J.L.J. 33 (1971), and 201, 94 N.J.L.J. 225 (1971): former-partner kin barred where relative is prosecutor
• N.Y. County Lawyers Ass'n, Question 461 (1957); ABA Informal Opinion 692

See also

• NJ ACPE Op. 239: A Municipal Prosecutor Taking Public-Defender Cases
• NJ ACPE Op. 261: A Prosecutor's Own Lawyer Defending the Accused
• NJ ACPE Op. 252: A Former Prosecutor Now Representing the Man He Convicted

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp237-1.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.

95 N.J.L.J. 410, April 27, 1972

OPINION 237

Conflict of Interests Attorney, Husband of Assistant Prosecutor

An advisory opinion is requested as to whether an attorney whose wife is an assistant prosecutor who is neither a partner nor shares office space with the inquirer in a county should be precluded from practicing criminal law in the county.

It is our opinion that the representation of defendants in criminal matters in a county in which one's wife is assistant prosecutor would be improper in that the relationship of the attorneys would place an undue, and perhaps impossible, burden upon each attorney's duty to guard the confidences of his clients (see DR 4-101 and EC 4-1 and 4-4).

The N.Y. County Lawyers Ass'n., Committee on Professional Ethics, Question 461 (1957) made a similar determination finding that there was an impropriety in attorneys who shared the same office space representing opposing litigants. The American Bar Association, Standing Committee on Professional Ethics, Informal Opinion 692 (no date) has also determined that a law firm engaging in criminal practice could not ethically employ as a secretary in a confidential capacity the wife of a police detective officer. Both of these opinions were based at least in part upon the former Canons of Professional Ethics, Canon 37 (now DR 4-101).

Some questions would also arise under DR 5-101 requiring an attorney to refuse employment where his personal interests may impair his professional judgment. This would be especially true when DR 5-101 is read in conjunction with the Ethical Considerations and Disciplinary Rules (based upon former Canon 9) of the American Bar Association Code of Professional Responsibility admonishing lawyers to avoid even the appearance of professional impropriety.

We have considered but do not now decide the question of conflict of interest in the above situation since we have determined that the representation would be improper on other grounds.

We note our former Opinions 191, 94 N.J.L.J. 33 (1971), and 201, 94 N.J.L.J. 225 (1971), where we held that close kinsmen who were former partners were barred from representing criminal defendants in a county where the former partner and relative was a prosecutor. We think the rationale of those opinions would apply equally to a situation involving a husband and wife who are former partners. That is not the situation before us. We, therefore, do not hold that under any and all circumstances lawyers with blood or marital relationship may not represent conflicting interests. Such representation should, however, be undertaken, if at all, with extreme caution in view of the mandate of the disciplinary rules referred to above, relating to the avoidance of the appearance of impropriety.