Can a law firm represent defendants who were investigated or indicted while one of the firm's associates was working on the county prosecutor's staff?

Plain-English summary

The Committee received two inquiries asking whether a firm may represent defendants who were investigated or under indictment during the time an associate of the firm was on the staff of the county prosecutor concerned with those matters. It answered that the firm may not.

The Committee rested its conclusion on In re Biederman, State v. Rizzo, and its own Opinions 340, 276, and 207, which establish that the fact the assistant prosecutor had no connection whatever with the investigation or with the preparation of the case is immaterial. It rejected the suggestion that the bar should be lifted because some of the prosecutor's file information might be fully discoverable by the defense.

The Committee explained that the rule of those cases and opinions is based on the unacceptable appearance of possible impropriety to the general public, and that in such matters the consent of the public official or agency does not remove the risk of the appearance of impropriety.

Currency note

This opinion was issued in 1977, 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. Questions about lawyers moving between government and private practice, and imputation of the resulting disqualification to a firm, are now analyzed under RPC 1.11 and RPC 1.10; New Jersey abolished the separate appearance-of-impropriety standard in 2004. Treat this page as historical context, not current guidance.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's firm defend people the prosecutor's office investigated?

A: Under this opinion, not where those defendants were investigated or indicted while the firm's associate served on that prosecutor's staff.

Q: Does it help that the associate had nothing to do with the investigation?

A: No. The Committee held that the associate's lack of any connection with the investigation or case preparation is immaterial.

Q: Can the prosecutor's office consent to cure the problem?

A: No. The Committee held that consent of the public official or agency does not remove the risk of the appearance of impropriety.

Background and rules framework

The opinion applied the appearance-of-impropriety standard then governing former government lawyers, as developed in In re Biederman, State v. Rizzo, and its Opinions 207, 276, and 340, to impute the associate's disqualification to the firm. In current New Jersey terms, successive government-and-private employment is governed by RPC 1.11 and imputation by RPC 1.10.

Citations and references

Rules of Professional Conduct:

• Appearance-of-impropriety standard for former government lawyers, as in effect 1977; now MR 1.11 / NJ RPC 1.11, with imputation under MR 1.10 / NJ RPC 1.10

Cases:

• In re Biederman, 63 N.J. 396 (1973)
• State v. Rizzo, 69 N.J. 28 (1975)

Other opinions cited:

• NJ ACPE Opinion 340, 99 N.J.L.J. 610 (1976); Opinion 276, 96 N.J.L.J. 1461 (1973); Opinion 207, 94 N.J.L.J. 451 (1971)

See also

• NJ ACPE Op. 496: Prosecutor's Staff Privately Represented by the County Criminal-Defense Bar
• NJ ACPE Op. 434: Associates of an Attorney Who Is Spouse of an Assistant Prosecutor

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp361-1.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.

100 N.J.L.J. 1, January 6, 1977

OPINION 361

Conflict of Interest
Firm's Representing Defendants Investigated While Associate on Prosecutor's Staff

We have two inquiries as to whether a firm may represent defendants who were investigated or under indictment during the time an associate of the firm was on the staff of the county prosecutor concerned with the matters.

In our opinion it may not. In re Biederman, 63 N.J. 396, (1973); State v. Rizzo, 69 N.J. 28 (1975); and the opinions of this Committee, Opinion 340, 99 N.J.L.J. 610 (1976); Opinion 276, 96 N.J.L.J. 1461 (1973); and Opinion 207, 94 N.J.L.J. 451 (1971). In these opinions we made it clear that the fact the assistant prosecutor had no connection whatever with the investigation or with the preparation of the case is immaterial.

It is suggested that since the information in some of the prosecutor's files may be fully discoverable by the defense, there is no reason to impose the bar. But the rule of the above cases and opinions is based on the unacceptable appearance of possible impropriety to the general public. And in such matters consent of the public official or agency fails to remove the risk of the appearance of impropriety.