May a lawyer practice criminal defense in the same state where her spouse serves as a deputy attorney general prosecuting criminal appeals?

Plain-English summary

The inquiry asked whether an attorney whose husband was a deputy attorney general with the Division of Criminal Justice could practice criminal defense law in New Jersey. The inquirer argued that conflicts could be avoided case by case, for example by the husband never handling an appeal in which his wife was involved in the defense, and that New Jersey's open discovery rules eliminated the risk of confidences passing between them. He read Opinion 237 as based solely on the duty to guard client confidences and contended that his wife should be allowed to practice criminal defense while he remained in the appellate section.

The Committee disagreed. It did not accept that open discovery rules eliminate the risk of disclosure of clients' confidences. More important, it found, the situation would inevitably present the appearance of conflict even if no actual conflict existed. The Committee quoted Opinion 191 for the principle that the profession must avoid not only all evil but the appearance of evil.

Applying that principle, the Committee reasoned that if the attorney defended criminal cases in New Jersey where her husband was a deputy attorney general assigned to the appellate section of the Division of Criminal Justice, the public would suspect that she received preferential treatment and might use her influence for private gain. It therefore concluded that the inquirer's wife should not practice criminal defense law in New Jersey while her husband held that assignment, citing Opinion 237 as well.

Currency note

This opinion was issued in 1974, 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. It applied the appearance-of-conflict principle that, for related lawyers on opposite sides, is now analyzed under RPC 1.7. Subsequent rule amendments and later opinions, including the modern treatment of conflicts arising from family relationships, may have changed the analysis. Treat this page as historical context, not current guidance.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 do criminal defense if her spouse is a government criminal-justice lawyer?

A: Under this opinion, no, while the spouse is a deputy attorney general assigned to the Division of Criminal Justice; the Committee found the appearance of conflict controlling.

Q: Did case-by-case screening solve the problem?

A: No. The Committee rejected the argument that conflicts could be avoided individually and that open discovery eliminated the risk of disclosed confidences, holding that the appearance of conflict remained.

Q: Why did appearance matter if there was no actual conflict?

A: The Committee applied the principle from Opinion 191 that the profession must avoid even the appearance of evil, finding the public would suspect preferential treatment.

Background and rules framework

The opinion applied the conflict-of-interest and appearance-of-impropriety principles of the Code of Professional Responsibility to a marital relationship between a criminal defense lawyer and a government prosecutor. In current New Jersey terms, conflicts between related lawyers on opposing sides are analyzed under RPC 1.7.

Citations and references

Rules of Professional Conduct:

• Conflict-of-interest and appearance-of-impropriety principles, as in effect 1974; now MR 1.7 / NJ RPC 1.7

Other opinions cited:

• NJ ACPE Opinion 191, 94 N.J.L.J. 33 (1971) (avoiding the appearance of evil)
• NJ ACPE Opinion 237, 95 N.J.L.J. 410 (1972)

See also

• NJ ACPE Op. 297: A Development Corporation's Counsel Who is a Prosecutor's Partner
• NJ ACPE Op. 318: A Freeholder's Husband as Assistant County Counsel
• 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/acp288-1.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.

97 N.J.L.J. 766, October 3, 1974

OPINION 288

Conflict of Interest Deputy Attorney General's Wife Practicing Criminal Law

This inquiry presents the question of whether an attorney whose husband is a deputy attorney general with the Division of Criminal Justice may practice criminal defense law in the State of New Jersey.

The inquirer maintains that conflicts could be avoided on a case-to-case basis, for example, by his never handling an appeal where his wife was involved in the defense. He further contends that the open discovery rules in this State eliminate the risk of confidences being revealed by either of them to the other. Since he believes that Opinion 237, 95 N.J.L.J. 410 (1972), was based solely on the attorney's duty to guard the confidences of his client, he contends that his wife should be permitted to practice criminal defense law in the State of New Jersey even while he remains in the appellate section of the Division of Criminal Justice.

We do not agree with the inquirer's contention that open discovery rules eliminate the risk of disclosure of clients' confidences. Even more important, however, is the fact that the situation under consideration would inevitably present the appearance of conflict, even if no actual conflict exists. As we have previously stated in Opinion 191, 94 N.J.L.J. 33 (1971):

...If the profession is to occupy that position in public esteem which will enable it to be of greatest usefulness, it must avoid not only all evil, but must likewise avoid the appearance of evil.

Applying the foregoing, if the attorney were to defend criminals in New Jersey where her husband is employed as a deputy attorney general assigned to the appellate section of the Division of Criminal Justice, the public would suspect that the attorney would receive preferential treatment and might use her influence for private gain.

We, therefore, believe that the inquirer's wife should not be permitted to practice criminal defense law in New Jersey while her husband is assigned as aforesaid. Also, see Opinion 237, 95 N.J.L.J. 410 (1972).