May a former assistant prosecutor defend an accused in a criminal matter that was under investigation, by a state commission, within his old office's jurisdiction during his tenure, even if he never touched the file?

Plain-English summary

The inquirer, a former assistant prosecutor, asked whether he could represent an accused in a matter that had been pending before the State Commission of Investigation during his tenure. The file reached his former prosecutor's office only after he resigned; the office then investigated and prosecuted, and the inquirer was retained by the accused about two months after resigning, with an indictment returned eight days later. He represented the accused at arraignment and in pretrial matters before anyone questioned the propriety of the representation.

The Committee found Opinion 207, approved by the Court in In re Biederman, largely controlling, and considered whether it mattered that the investigation was conducted by the State Commission of Investigation rather than by the prosecutor's office itself. It described the Commission as a non-accusatory body created to discover and publicize facts and, in proper cases, transmit evidence to law enforcement (N.J.S.A. 52:9M-2; Zicarelli), and directed to cooperate with prosecutors on request (N.J.S.A. 52:9M-5), while the criminal business of the State is prosecuted by the Attorney General and county prosecutors.

The Committee reasoned that the Commission had been engaged, during the inquirer's tenure, with a matter within his county prosecutor's jurisdiction that ripened into an indictment shortly after he left. Following the rationale of Opinion 207, that the controlling concern is the unacceptable appearance of possible impropriety to the public, it found the inquirer's lack of connection with or knowledge of the file was not determinative. The public would simply be aware that a criminal investigation within his former office's jurisdiction was conducted while he was part of the law enforcement apparatus, so the Committee held that, on the particular facts, the representation of the accused was not proper.

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-government-lawyer conflict it applied is now treated under RPC 1.11, with the general conflict principles 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 former assistant prosecutor defend someone his old office prosecuted?

A: Under this opinion, not where the matter was investigated within that office's jurisdiction during his tenure; the Committee held such representation improper on the facts presented.

Q: Did it matter that he never personally handled the file?

A: No. The Committee found his lack of connection with or knowledge of the file was not determinative, because the concern was the appearance of possible impropriety to the public.

Q: Did it matter that the investigation was run by a state commission, not the prosecutor?

A: No. The Committee found the public would not understand that distinction, particularly given the short time between the inquirer's resignation and the indictment.

Background and rules framework

The opinion applied the appearance-of-impropriety rationale of Opinion 207 to a former government lawyer, with reference to the statutes defining the State Commission of Investigation and the county prosecutors. In current New Jersey terms, the former-government-lawyer conflict is governed by RPC 1.11, and the general conflict principles by RPC 1.7.

Citations and references

Rules of Professional Conduct:

• Appearance-of-impropriety and former-government-lawyer principles, as in effect 1973; now MR 1.11 / NJ RPC 1.11 and MR 1.7 / NJ RPC 1.7

Statutes:

• N.J.S.A. 52:9M-2, N.J.S.A. 52:9M-5 (State Commission of Investigation)
• N.J.S. 2A:158-5, N.J.S. 2A:158-18 (county prosecutors and assistants)

Cases:

• In re Biederman, 63 N.J. 396 (1973), approving Opinion 207
• Zicarelli v. N.J. State Commission of Investigation, 55 N.J. 249 (1970)

Other opinions cited:

• NJ ACPE Opinion 207, 94 N.J.L.J. 451 (1971)

See also

• NJ ACPE Op. 294: A Former Public Lawyer Representing Private Clients Before His Old Agency
• NJ ACPE Op. 297: A Development Corporation's Counsel Who is a Prosecutor's Partner
• NJ ACPE Op. 287: A Municipal Prosecutor's Political Activity

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp276-1.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. 1461, December 27, 1973

OPINION 276

Conflict of Interest Former Assistant Prosecutor Defending One Investigated Before Resignation

The question presented is whether a former assistant prosecutor may represent an accused in a matter which was pending before the State Commission of Investigation during the time the inquirer was an assistant prosecutor. The file in the matter was first turned over to the prosecutor's office in which the inquirer had been employed after the inquirer had resigned. An investigation and prosecution were then conducted within the same prosecutor's office and the inquirer was retained by the accused in connection therewith two months after his resignation, and eight days thereafter an indictment was returned. The inquirer thereafter represented the accused at the arraignment and in pretrial matters without any objection. The case is about to be set down for trial but a question has now been belatedly raised concerning the propriety of the inquirer's representing the accused.

N.J. Advisory Committee on Professional Ethics, Opinion 207, 94 N.J.L.J. 451 (1971) would seem to cover this inquiry. That opinion has been cited by the Court with approval in In re Biederman, 63 N.J. 396, 399 (1973). The basic question is whether there is a distinction between the situation where the investigation was made by the S.C.I. rather than by the particular prosecutor's office employing the inquirer as was the case in the situation dealt with in Opinion 207, supra.

The State Commission of Investigation, it is true, is not an accusatory body but was created to discover and publicize facts which might either be useful to the legislature or to aid law enforcement by gathering evidence of crime and, in the proper case, transmitting it to the appropriate law enforcement agency, N.J.S.A. 52:9M-2; Zicarelli v. N.J. State Commission of Investigation, 55 N.J. 249 (1970). The commission is, however, directed to cooperate with the Attorney General or county prosecutors or other law enforcement agency upon request N.J.S.A. 52:9M-5.

The criminal business of the State is prosecuted by the Attorney General and the county prosecutor. N.J.S. 2A 158. Each prosecutor is vested with the requisite powers and duties within his county, N.J.S. 2A:158-5, and the assistant prosecutors are empowered to exercise the powers and duties of the prosecutor in each county, N.J.S. 2A:158-18.

From the foregoing it would appear of necessity that the S.C.I. in the instant case was engaged during inquirer's tenure as assistant prosecutor with the investigation of a matter within the jurisdiction of the office of the prosecutor of the county in which he was assistant prosecutor and which ripened within slightly over two months after inquirer's departure into an indictment. The rationale of Opinion 207, supra, is the unacceptable appearance of possible impropriety to the general public. In that case as in this one the fact that the inquirer had no connection with or knowledge of the file is not determinative. We find it difficult to believe that the public would be able to understand the distinction here sought to be made, particularly in view of the time frame involved.

The public would, we think, merely be aware that a criminal investigation within the jurisdiction of inquirer's former office was conducted while the inquirer was a part of the law enforcement apparatus entrusted with the discovery and prosecution of crimes. We therefore hold that under the particular facts presented here the inquirer's representation of the accused is not proper.