Can a lawyer who works for a state agency be assigned to represent an indigent criminal defendant, or must he be excused because he is a state employee?

Plain-English summary

A member of the bar serving as Supervisor of the New Jersey Second Injury Fund, part of the State Workmen's Compensation Division, asked whether he should be excused, because he is a state employee, from representing indigent defendants in criminal cases. He believed his state employment barred him from ethically representing defendants charged with violating the State's criminal laws.

The Committee concluded that neither his state employment nor the cited Canons precluded the representation. It found Judicial Canon 31 (barring the practice of law by one holding judicial office) inapplicable, because the inquirer is not a judge of the Workmen's Compensation Court, and even those judges have been held not to be judicial officers. It further found that Professional Canons 4 and 6 did not preclude an attorney so situated from representing an indigent defendant, and that there is no conflict of interest merely because the attorney is a state employee.

The Committee noted that no state law forbids a state-employed lawyer from appearing in these cases. It added that if the charged crime involves the State itself, such as embezzling state funds, then an attorney so situated would be excused once those facts were made known to the Assignment Judge; it saw no impropriety or conflict in any other case.

Currency note

This opinion was issued in December 1963, before New Jersey's September 13, 1971 adoption of the Disciplinary Rules (Code of Professional Responsibility), and well before the 1984 Rules of Professional Conduct and all later revisions. It applied Canons 4 and 6 of the former Canons of Professional Ethics and Canon 31 of the Canons of Judicial Ethics. Conflicts of interest, accepting appointments, and the duties of government lawyers are now addressed by RPC 1.7, RPC 6.2, and RPC 1.11. Treat this page as historical context, not current guidance.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: Did being a state employee disqualify the lawyer from an assigned criminal defense?

A: No. The Committee found no impropriety or conflict merely because the assigned attorney is a state employee.

Q: Was there any case where he would be excused?

A: Yes. The Committee said that if the charged crime involves the State itself, such as embezzling state funds, the attorney would be excused once the Assignment Judge learned those facts.

Q: Did the judicial-ethics canon against practicing law apply to him?

A: No. The Committee found Judicial Canon 31 inapplicable because he is not a judge of the Workmen's Compensation Court, and even those judges have been held not to be judicial officers.

Background and rules framework

The opinion applied Canon 4 (assigned counsel should not seek excuse for trivial reasons) and Canon 6 (conflicting interests) of the former Canons of Professional Ethics, and Canon 31 of the Canons of Judicial Ethics, along with Rule 1:12-9 on assignment of counsel. Conflicts and government-lawyer duties are now found in RPC 1.7, RPC 6.2 (accepting appointments), and RPC 1.11.

Citations and references

Rules of Professional Conduct (as in effect at the time):

• Canon of Professional Ethics 4 (assigned counsel)
• Canon of Professional Ethics 6 (conflicting interests)
• Canon of Judicial Ethics 31 (practice of law by one holding judicial position)
• N.J. Rule 1:12-9 (assignment of counsel in indigent cases)

Cases:

• Campbell v. Dept. of Civil Service, 39 N.J. 556 (1963), Workmen's Compensation Court judges not judicial officers

Other opinions cited:

• ABA Committee on Professional Ethics, Opinion 55 (1931)

See also

• NJ ACPE Op. 8: Municipal Prosecutor Preparing a Client's Separation Agreement
• NJ ACPE Op. 671: Activities and Obligations of Pro Bono Attorneys

Source

• Landing page: https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp3-1.html

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

86 N.J.L.J. 718
December 19, 1963

OPINION 3

Assignment Of Counsel -
State Employees

The inquiry in this case is whether a member of the bar of this State, who is presently engaged as Supervisor of the New Jersey Second Injury Fund, which is part of the State Workmen's Compensation Division, should be excused, by reason of his being a State employee, from representing indigent defendants in criminal cases.

The attorney who poses the problem apparently is under the impression that, being an employee of the State of New Jersey, he cannot ethically represent defendants charged with violating the criminal laws of this State.

R.1:12-9(e) provides for the assignment of counsel in indigent cases by the Assignment Judge of each county and vests in him the full power to excuse counsel, except as stated in R. 1:12-9(g). The latter exception is not here pertinent.

Involved here are Canon 31 of the Canons of Judicial Ethics and Canons 4 and 6 of the Canons of Professional Ethics. Judicial Canon 31 proscribes the practice of law by one holding judicial position. Professional Canon 4 states that a lawyer assigned as counsel for an indigent prisoner should not be asked to be excused for a trivial reason. Professional Canon 6 refers to the representation of conflicting interests, the necessity of a lawyer disclosing to his client all of the circumstances of his relations with other parties to the cause, and the requirement that a lawyer give his undivided fidelity to his client.

The attorney making this inquiry maintains a law office, and presumably practices law, in addition to performing his duties for the Workmen's Compensation Division. He is not a judge of the Workmen's Compensation Court and his office is not such as to make Judicial Canon 31 applicable to him. Even the judges of the Workmen's Compensation Court have been held by our Supreme Court not to be judicial officers. See Campbell v. Dept. of Civil Service, 39 N.J. 556 (1963).

Nor, in our opinion, do Professional Canons 4 and 6 preclude an attorney so situated from representing an indigent defendant in a criminal case. See American Bar Association Committee on Professional Ethics Opinion No. 55 (12/14/31). There is no conflict of interest merely because the attorney is an employee of the State.

No State law forbids a lawyer employed by the State from appearing in these cases. Of course, if the crime with which the defendant is charged is one involving the State itself - such as embezzling State funds - then it must be assumed that upon these facts being made known to the Assignment Judge any attorney situated as is the one making this inquiry would be excused. This Committee sees no impropriety in counsel acting in any other case, nor any conflict in interest.