If a lawyer becomes 'of counsel' to a firm in the same county where his son is the full-time county prosecutor, is the firm barred from criminal practice in that county?

Plain-English summary

The inquirer had practiced in partnership with his son until the son was appointed a full-time county prosecutor, at which point the firm dissolved and the father continued to practice alone in the same municipality and county. The father now wished to become "of counsel" to a law firm in that same municipality and county, and asked whether doing so would preclude that firm from handling any criminal cases in the county where his son was the prosecutor.

The Committee concluded that if the firm handled criminal cases in the county after the father's association with it, there could be a public perception that its clients would receive preferential treatment, giving rise to the appearance of impropriety. It cited Opinion 191, 94 N.J.L.J. 33 (1971), reiterated in Opinion 201, 94 N.J.L.J. 225 (1971), for the principle that such an appearance must be avoided. Because the father himself was precluded from practicing criminal law in the county, the Committee reasoned that so was the firm: R. 1:15-5(b) defines an "office associate" to include attorneys who share common office facilities, and an "of counsel" lawyer obviously shares office facilities, so the firm was barred under R. 1:15-4. The Committee rejected the inquirer's view that Opinions 191 and 201 did not apply to his situation, concluding that they did.

Currency note

This opinion was issued in 1984, before New Jersey's adoption of the 2004 revisions to the Rules of Professional Conduct, which abolished the freestanding "appearance of impropriety" standard the Committee relied on, and the court rules cited (R. 1:15-4 and R. 1:15-5(b)) have since been revised. 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 Treat this page as historical context, not current guidance.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 lawyer become 'of counsel' to a firm in the county where his son is the prosecutor?

A: The opinion concluded the association itself was permissible, but it carried a consequence: the firm could not handle criminal cases in that county.

Q: Why was the firm barred and not just the father?

A: Per the opinion, an "of counsel" lawyer shares the firm's office facilities, making him an "office associate" under R. 1:15-5(b); because the father was barred from county criminal practice, R. 1:15-4 extended the bar to the firm.

Q: What was the underlying concern?

A: The opinion identified the appearance of impropriety: a public perception that the firm's criminal clients might receive preferential treatment from the prosecutor.

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 within a firm)

Court rules:

• R. 1:15-4 (restrictions on practice; bar on criminal practice in the prosecutor's county)
• R. 1:15-5(b) (definition of "office associate" including attorneys who share common office facilities)

Other opinions cited:

• NJ ACPE Opinion 191 and Opinion 201 (appearance of impropriety from a prosecutor's relative practicing criminal law in the county)

See also

• NJ ACPE Op. 599: Relative of an Assistant Prosecutor Practicing Criminal Law
• NJ ACPE Op. 577: Partner of a Municipal Judge Serving as Public Defender in the County
• NJ ACPE Op. 563: Municipal Prosecutor's Firm Representing the Judge and Taking Referrals
• NJ ACPE Op. 634: Former Prosecutor in a Civil Action Against an Indicted Defendant

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp541-1.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.

114 N.J.L.J. 387, October 11, 1984

OPINION 541

Father "Of Counsel" To Law Firm Handling Criminal Cases In County Where Son Is The County Prosecutor

The inquirer practiced law in a partnership with his son until the latter was appointed a full-time prosecutor. The law firm was thereupon dissolved, and the father continued to practice alone in the same municipality and county. He now desires to become "of counsel" with a law firm also in the same municipality and county where he practiced before and where his son is the full-time prosecutor.

The father inquires as to whether, if he becomes "of counsel" with this law firm, will it be precluded from engaging in any criminal practice in the county in which his son is the prosecutor.

It seems clear to us that if, after the inquirer becomes associated with it, the law firm handles criminal cases in the county in question, there may be public perception that its clients will receive some preferential treatment, thus, giving rise to the appearance of impropriety. As we pointed out in Opinion 191, 94 N.J.L.J. 33 (1971) and reiterated in Opinion 201, 94 N.J.L.J. 225 (1971), this must be avoided.

Since the inquirer will be precluded from practicing criminal law in the county in question, so will the law firm to which he becomes "of counsel". R. 1:15-5(b) defines "office associate" as including attorneys who share common office facilities. A person in an "of counsel" status obviously shares office facilities. Since he is precluded from practicing criminal law in the county, so will the law firm be barred under R. 1:15-4.

The inquirer states that he does not believe that our cited Opinions 191 and 201, supra, apply to his situation, but we conclude that they do.