Can a criminal defense lawyer privately represent an assistant prosecutor, county investigator, or county detective in personal matters while practicing criminal defense in the same county?

Plain-English summary

A county prosecutor asked whether assistant prosecutors, county investigators, and county detectives in his office could properly be represented in their personal legal affairs by attorneys who also maintained active criminal defense practices in the same county. Saying it was impossible to detail every area of actual or potential conflict, he presented three specific instances: two matrimonial actions (involving an assistant prosecutor and a county detective) and a property-damage suit over an assistant prosecutor's struck vehicle. The Committee concluded all three representations were improper and should be withdrawn.

The Committee started from the premise that, because of both the appearance of impropriety (DR 9-101) and the potential for conflict under DR 5-105(B), a prosecutor himself should not seek personal representation by an attorney who actively practices criminal defense in the same county. Quoting Opinion 261, it noted that the close personal relationship of defense counsel to a prosecutor, for whatever purpose, invites the public appearance of impropriety and raises a question whether the attorney's professional judgment on behalf of either client could be adversely affected.

The Committee held that this reasoning applies with equal force to a prosecutor's staff, who, no less than the prosecutor, are active participants in a criminal-justice system in which defense counsel are indispensable but necessarily adversarial. Accordingly, in fact situations like those presented, members of the local criminal defense bar should not undertake private representation of assistant prosecutors, county investigators, or county detectives.

Currency note

This opinion was issued in 1982, 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 2004 revisions abolished the freestanding "appearance of impropriety" standard the Committee applied. Subsequent rule amendments or later opinions 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 Treat this page as historical context, not current guidance.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: Could a county criminal defense lawyer privately represent an assistant prosecutor?

A: No. The opinion concluded such representation was improper and should be withdrawn, extending to assistant prosecutors, county investigators, and county detectives.

Q: Did it matter that the personal matters (a divorce, a car-damage suit) had nothing to do with criminal cases?

A: No. The opinion held the conflict arose from the close relationship between defense counsel and the prosecutor's office in an adversarial criminal-justice system, regardless of the subject of the personal matter.

Q: Why did the rule reach staff and not just the prosecutor?

A: The opinion reasoned that assistant prosecutors, investigators, and detectives are, like the prosecutor, active participants in the criminal-justice system, so the same appearance-of-impropriety and conflict concerns applied to them.

Background and rules framework

The opinion was decided under the appearance-of-impropriety standard (DR 9-101) and the conflict rule (DR 5-105(B)) then governing New Jersey lawyers, before the 1984 adoption of the Rules of Professional Conduct. In current terms the analysis maps onto RPC 1.7 (concurrent conflicts arising from a lawyer's responsibilities to another client or a third person and from the lawyer's own interests).

Citations and references

Rules of Professional Conduct:

• MR 1.7 / NJ RPC 1.7 (concurrent conflicts of interest)

Other opinions cited:

• NJ ACPE Opinion 261, 96 N.J.L.J. 1150 (1973) (counsel to a prosecutor should not represent the accused in the same county)

See also

• NJ ACPE Op. 510: Defending a Client and Prosecuting the Client's Own Complaint

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp496-1.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.

109 N.J.L.J. 377, May 6, 1982

OPINION 496

Prosecutor's Staff Personally Represented by Criminal Practitioners

A county prosecutor inquires whether assistant prosecutors, county investigators and county detectives employed by his office can properly be represented in their personal legal affairs by attorneys who also maintain active criminal defense practices in the same county. Stating that "it is impossible to detail the areas of actual or potential conflict" with respect to all members of his staff and their respective situations, the inquirer asks us to consider three specific instances in which staff members have retained criminal practitioners to represent them privately. Two involve matrimonial actions to which an assistant prosecutor and a county detective, respectively, are parties, and the third concerns a property damage suit in which an assistant prosecutor's vehicle was struck. It is our opinion that under the facts presented, all three representations are improper and should be withdrawn.

We start with the premise that because of both the appearance of impropriety (DR 9-101) and the potential for conflict under DR 5-105 (B), a prosecutor himself should not seek personal representation by an attorney who actively practices criminal defense law in the same county. As we said in our Opinion 261, 96 N.J.L.J. 1150 (1973):

[t]he close personal relationship of [defense] counsel to a prosecutor, for whatever purpose, necessarily invites in the public mind the appearance of impropriety. There is, also, a question of whether or not the attorney's professional judgment on behalf of either client, prosecutor or accused, may be adversely affected by his representation of the other, DR 5-105(B). In our opinion, counsel to a prosecutor should refrain from representing accused in the county while he represents the prosecutor of that county.

We think this view applies with equal force to those members of a prosecutor's staff who, no less than he, are active participants in a criminal justice system of which defense counsel are indispensable, but necessarily adversarial, components. Accordingly, we hold that in fact situations such as those presented here members of the local criminal defense bar should not undertake private legal representation of assistant prosecutors, county investigators or county detectives.