Can the associate of an assistant county counsel handle a criminal defendant's appeal from a conviction that arose in the same county?

Plain-English summary

The Committee was asked whether an attorney who was an associate of an attorney about to be appointed assistant county counsel could, once the appointment was confirmed, continue to represent a client convicted of an offense in the Superior Court, Law Division, in the same county. The appeal had already been filed, and the Attorney General had been substituted for the county prosecutor as attorney for the State. The inquirer argued there was no actual conflict because the county would not be involved in the appeal.

The Committee disagreed. It recalled Opinion 106, which held that a county counsel may not represent a defendant indicted for a crime in the county he serves, and Opinion 268, which extended that to non-indictable offenses in a municipal court of the same county. Where the county counsel is disqualified, the Committee noted, any partner or associate is also disqualified, citing DR 5-105(D) and Reardon v. Marlayne, Inc., 83 N.J. 460 (1980).

The Committee located the inquirer's error in misperceiving the role of county counsel, which represents all the people of the county in matters affecting it. Because prosecution of offenses within a county affects its people, and that interest continues even on appeal where the county prosecutor is no longer directly involved, the Committee found a direct conflict in acting as county counsel while resisting prosecution of persons charged with offenses in the same county. It held that the conflict extends to proceedings on any judicial level growing out of the original charges, so the associate of an assistant county counsel may not conduct the criminal appeal.

Currency note

This opinion was issued in 1981, 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 imputation rules it applied (DR 5-105(D)) now correspond broadly to RPC 1.7, RPC 1.10, and RPC 1.11. Treat this page as historical context, not current guidance.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: Could the assistant county counsel's associate handle the criminal appeal?

A: No. The opinion concluded the associate could not, because an assistant county counsel is disqualified from resisting county prosecutions and that disqualification imputes to associates.

Q: Did it matter that the county prosecutor was no longer in the case on appeal?

A: No. The opinion held the county's interest in the prosecution continues on appeal, and the conflict extends to any judicial level growing out of the original charges.

Q: Why does the assistant county counsel's conflict reach his associate?

A: Because, under DR 5-105(D) and Reardon v. Marlayne, where the county counsel is disqualified, his partners and associates are disqualified as well.

Background and rules framework

The opinion applied DR 5-105(D), under which one lawyer's disqualification imputes to partners and associates, read with the conflict principles governing government lawyers. In current New Jersey terms the analysis maps onto RPC 1.7 (concurrent conflicts), RPC 1.10 (imputation), and RPC 1.11 (government-lawyer conflicts). The controlling premise was that county counsel represents all the people of the county, whose interest in prosecuting county offenses continues through appeal.

Citations and references

Rules of Professional Conduct:

• MR 1.7 / NJ RPC 1.7 (concurrent conflicts of interest)
• MR 1.10 / NJ RPC 1.10 (imputation of conflicts); decided under former DR 5-105(D)
• MR 1.11 / NJ RPC 1.11 (government-lawyer conflicts)

Cases:

• Reardon v. Marlayne, Inc., 83 N.J. 460 (1980) (disqualification imputes to partners and associates)

Other opinions cited:

• NJ ACPE Opinion 106, 90 N.J.L.J. 97 (1967) (county counsel may not defend a crime indicted in his county)
• NJ ACPE Opinion 268, 96 N.J.L.J. 1325 (1973) (extending the bar to non-indictable offenses in the county's municipal court)

See also

• NJ ACPE Op. 489: Assistant County Counsel as Special Counsel to a Municipality
• NJ ACPE Op. 501: Assistant County Counsel as Municipal Prosecutor
• NJ ACPE Op. 504: Former Municipal Workers'-Comp Defense Counsel Suing the Municipality

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp478-1.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.

107 N.J.L.J. 329, April 16, 1981

OPINION 478

Conflict of Interests Assistant County Counsel's Associate Conducting Appeal from Conviction in County

This Committee has received the following inquiry: May an attorney who is an associate of an attorney who will soon be appointed assistant county counsel continue, once the appointment is confirmed, to represent a client who has been convicted of an offense in Superior Court, Law Division, in the same county?

The attorney has already filed an appeal and the Attorney General has been substituted for the county prosecutor as attorney for the State. The inquirer suggests that there is no actual conflict since the county will not be involved in the appeal. We disagree. In our Opinion 106, 90 N.J.L.J. 97 (1967), we held that a county counsel may not represent a defendant indicted for a crime in the county in which the counsel serves. In our Opinion 268, 96 N.J.L.J. 1325 (1973), we extended and clarified our earlier ruling, holding that a county counsel may not even represent a defendant charged with a non-indictable offense in a municipal court of the same county. Of course, where the county counsel is disqualified, any partner or associate of his is also disqualified from representing such defendants. DR 5-105(D); Reardon v. Marlayne, Inc., 83 N.J. 460, 470 (1980).

While the inquirer concedes that he could not continue to represent such a defendant within the county, he does not see any conflict in representing a defendant on an appeal from the county. The fallacy in this thinking is in misperceiving the role of the county counsel. "The county attorney represents all of the people of the county in matters affecting it." Opinion 106, supra. It cannot be disputed that prosecution of offenses alleged to have taken place within a county affects the people of the county. Even in the situation posed by this inquiry, where the county prosecutor is no longer directly involved in proceedings on the appellate level, the interest of the people of the county in the prosecution continues.

It is the opinion of this Committee that there is a direct conflict of interest in an attorney's acting as county counsel or assistant county counsel while at the same time resisting the prosecution of persons alleged to have committed offenses within the same county, and that this conflict extends to proceedings on any judicial level growing out of the original charges. For the foregoing reasons it is our view that an associate of an assistant county counsel may not prosecute a criminal appeal arising in the county in which the assistant county counsel serves.