May a lawyer who represents a county prosecutor in an ethics matter also defend people accused of crime in that same county?

Plain-English summary

The inquiry asked whether an attorney could represent defendants accused of crime in the county where he was representing the county prosecutor on a charge of unethical practices; the ethics matter had not yet reached the Supreme Court. In both roles the attorney was counseling and advocating for persons facing accusations, one criminal and the other ethical.

The Committee acknowledged that counsel to a prosecutor, whether on an ethics matter or on ordinary personal work like real estate, trust, or tax matters, does not necessarily deal with the prosecutor's criminal work, and that such professional employment does not make the lawyer an associate or employee of the prosecutor for conflict purposes. Even so, the Committee found that the close personal relationship of counsel to a prosecutor necessarily invites in the public mind the appearance of impropriety under DR 9-101, and raised a question under DR 5-105(B) whether the lawyer's professional judgment for either client, prosecutor or accused, might be adversely affected by his representation of the other. It concluded that counsel to a prosecutor should refrain from representing the accused in the county while he represents the prosecutor of that county.

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 conflict and appearance principles it applied (DR 9-101, DR 5-105(B)) are now treated under RPC 1.7. Treat this page as historical context, not current guidance.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 lawyer who represents a prosecutor also defend accused persons in that county?

A: Under this opinion, no, while the representation of the prosecutor continues; the Committee said counsel should refrain from defending the accused in that county.

Q: Does representing the prosecutor make the lawyer part of the prosecutor's office?

A: No. The Committee said such employment does not make the lawyer an associate or employee of the prosecutor for conflict purposes, but the personal relationship still invites an appearance of impropriety.

Q: What rules drove the concern?

A: DR 9-101 (appearance of impropriety) and DR 5-105(B), the concern that representing one client could adversely affect the lawyer's judgment for the other.

Background and rules framework

The opinion applied DR 9-101 (appearance of impropriety) and DR 5-105(B) (adverse effect of multiple representation) to a lawyer who personally represents a prosecutor. In current New Jersey terms, the conflict is governed by RPC 1.7.

Citations and references

Rules of Professional Conduct:

• DR 9-101 (appearance of impropriety) and DR 5-105(B) (multiple representation), as in effect 1973; now MR 1.7 / NJ RPC 1.7

See also

• NJ ACPE Op. 278: A Lawyer Under Investigation and the Witnesses Against Him
• NJ ACPE Op. 276: A Former Assistant Prosecutor Defending the Accused
• NJ ACPE Op. 267: A Solo Lawyer Sharing a Firm's Prosecutor Conflict

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp261-1.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. 1150, September 27, 1973

OPINION 261

Conflict of Interest Prosecutor's Counsel Representing Accused

This inquiry concerns the question of whether or not an attorney may represent defendants accused of crime in the county where he is representing the county prosecutor on a charge of unethical practices. The ethics matters have not yet reached the Supreme Court.

In both activities the attorney is counseling and advocating on behalf of persons faced with accusations, the one criminal, the other unethical. The problem arises out of whether or not an attorney's activity as counsel to a prosecutor gives rise to the issue of the appearance of impropriety, Disciplinary Rule 9-101, even though ethics matters do not reach public attention until they go before the Supreme Court on order to show cause.

The interest of the county prosecutor is in the enforcement of law and in the trial of persons accused of crime. An attorney for a prosecutor in an ethics matter, or for that matter any personal counsel of a prosecutor should he find it necessary to have one for his real estate, trust work, tax work or the like, does not necessarily deal with the work of the prosecutor with respect to criminal matters in his county; nor does such professional employment make the attorney for the prosecutor an associate or an employee of the prosecutor in the sense we have considered associates and employees for conflict purposes.

Yet, the close personal relationship of counsel to a prosecutor, for whatever purpose, necessarily invites in the public mind the appearance of impropriety. There is, also, a question of whether or not the attorney's professional judgment on behalf of either client, prosecutor or accused, may be adversely affected by his representation of the other, DR 5-105(B). In our opinion, counsel to a prosecutor should refrain from representing accused in the county while he represents the prosecutor of that county.