Can a former assistant prosecutor later represent a man he convicted, in a civil-service appeal where that conviction is the reason the man lost his retirement benefits?

Plain-English summary

A lawyer who had served as an assistant prosecutor asked whether he could represent a former police officer he had prosecuted and convicted of obtaining money under false pretenses. As a result of that conviction the officer was denied retirement benefits when he resigned from the Newark Police Department, and the proposed representation was an appeal of that denial to the Civil Service Commission. The inquirer said he had been privy to secret and confidential information in the criminal case but could not conceive of any circumstance where it would be relevant to the civil-service appeal, which he said apparently concerned only the administrative procedure used and the severity of the punishment. He did not categorically deny any relation.

The Committee held the inquirer may not properly represent the retired policeman. The State, its subdivisions, and citizens were his former clients when he prosecuted, in a matter related to the one in which he now proposed to represent against those former clients. His use of "apparently" may have reflected his own doubts, and the Committee resolved those doubts against the representation: the conviction is the very basis of the denial of benefits, so the substance of the criminal acts would be directly involved (for example on the severity of the penalty). That created both the risk of a duty to reveal confidential material learned as prosecutor and a basic conflict between his role obtaining the conviction and his proposed role minimizing its effects. The Committee distinguished cases approving representation against former clients (Opinions 154, 158, 216) as limited to "entirely unrelated" matters, and aligned this case with the line of opinions (6, 42, 97, 135, 155, 234, 246) finding representation improper where some relation exists. It added that informed consent by the former client, the public, was not possible. The contemplated representation was not proper under DR 5-105 and 4-101.

Currency note

This opinion was issued in 1973, 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 former-client-conflict and confidentiality principles it applied (DR 5-105, DR 4-101) are now treated under RPC 1.9, RPC 1.11 (former government lawyers), and RPC 1.6. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a former prosecutor represent someone he previously convicted?

A: Under this opinion, not where the new matter is related to the conviction. The Committee allowed such representation only in "entirely unrelated" matters and found this appeal directly related.

Q: Why was the civil-service appeal treated as "related"?

A: Because the conviction was the very basis of the benefits denial; the Committee found the substance of the criminal acts would be directly involved, for instance on the severity of the civil-service penalty.

Q: Could the former client consent to cure the conflict?

A: No. The Committee noted that the former client was the public, so informed consent to the proposed representation was not possible.

Background and rules framework

The opinion applied DR 5-105 (adverse multiple/sequential representation) and DR 4-101 (confidences) to a former government lawyer switching sides on a related matter. In current New Jersey terms the analysis falls under RPC 1.9, RPC 1.11, and RPC 1.6.

Citations and references

Rules of Professional Conduct:

• DR 5-105 and DR 4-101, as in effect 1973; now MR 1.9 / 1.11 / 1.6 and NJ RPC 1.9 / 1.11 / 1.6

Other opinions cited:

• NJ ACPE Opinions 154, 158, 216: representation against former clients allowed only in "entirely unrelated" matters
• NJ ACPE Opinions 6, 42, 97, 135, 155, 234, 246: representation improper where some relation exists

See also

• NJ ACPE Op. 276: A Former Assistant Prosecutor Defending the Accused
• NJ ACPE Op. 261: A Prosecutor's Own Lawyer Defending the Accused
• NJ ACPE Op. 308: A Freeholder's Attorney Opposing the County Prosecutor

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp252-1.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.

96 N.J.L.J. 305, March 15, 1973

OPINION 252

Conflict of Interest Former Prosecutor Representing Convicted Policeman on Retirement Appeal

The inquirer asks if he may ethically represent a person whom he, as a former assistant prosecutor, tried and whose conviction he attained for obtaining money under false pretenses, a result of that conviction the defendant was denied retirement benefits, upon his resignation from the Newark Police Department. The proposed representation involves an appeal to the Civil Service Commission of such denial of retirement benefits.

The inquirer states that he had been privy to secret and confidential information in the criminal case but he cannot "conceive of any circumstances" where any such information would be relevant to the Civil Service appeal. He further states, both in his letter of inquiry and in his brief memorandum, that the basis of the Civil Service appeal "apparently" in no way considers the substance of the criminal charge. He does not, however, categorically deny any relation. He states that the issues on appeal will relate to the administrative procedure utilized and the severity of the punishment.

It is clear that the inquirer may not properly represent the retired policeman in this matter. The State, its subdivisions, and citizens were his former clients when he prosecuted his proposed client in a matter which, to say the least is related to the matter in which he now proposes representation against the representatives of his former clients. His use of the word "apparently" as qualifying his assertions, that the criminal charge is not involved in the Civil Service appeal may reflect his own doubts that the matters are unrelated. In our minds the these doubts must be resolved to the contrary. The conviction constitutes the very basis of the denial of Civil Service benefits. It is scarcely conceivable, for example, that, on the issue of the severity of Civil Service penalty, the substance of the criminal acts which are the basis of the conviction would not be directly involved. Thus, there exists not only the possibility of his being faced with a duty to his present client to reveal confidential material learned in his role as prosecutor (and perhaps a duty to the appellate tribunal as well) but there is also a basic conflict in the role which be played as prosecutor in obtaining a conviction based on the facts and that which he would play as attorney for the convicted ex-policeman in seeking to minimize the effects of those same facts before another tribunal.

While we have sometimes approved of representation against former clients, e.g., Opinion 154, 92 N.J.L.J. 353 (1969); Opinion 158, 92 N.J.L.J. 641 (1969); Opinion 216, 94 N.J.L.J. 677 (1971), we have carefully limited that representation to matters which are "entirely unrelated" - even then admonishing caution.

Where there was some relation between the former and contemplated issues we have uniformly held the contemplated representation against a former client's interests to be improper, Opinion 6, 86 N.J.L.J. 718 (1963); Opinion 42, 87 N.J.L.J. 285 (1964); Opinion 97, 89 N.J.L.J. 507 (1966); Opinion 135, 91 N.J.L.J. 673 (1968); Opinion 155, 92 N.J.L.J. 358 (1969); Opinion 234, 95 N.J.L.J. 253 (1972); Opinion 246, 95 N.J.L.J. 1265 (1972). Those opinions adequately set forth the rationale for this one. The difficulties involved are not lessened but aggravated by the fact that, in this case, the former client was the public because in this case informed consent by the former client to the proposed representation is not possible.

The contemplated representation is not proper under DR 5-105 and 4-101.