Can the father or brother of an assistant prosecutor practice criminal law in the county where she serves as a prosecutor?

Plain-English summary

The Committee was asked whether the father or brother of an assistant prosecutor could practice criminal law in the county where she is employed. The county had more than twenty assistant prosecutors, and the assistant prosecutor had never had any professional or financial relationship with her father or brother; the three lived in separate households.

The Committee distinguished its prior opinions. In Opinion 541, a father and son had practiced in partnership before the son became County Prosecutor, and the Committee barred the father from criminal practice in that county on appearance-of-impropriety grounds, citing Opinions 191 and 201, both of which involved former partners of a prosecutor. In each of those cases the lawyers had been partners. Here, by contrast, the assistant prosecutor had never practiced with her father or brother. Given the absence of any previous professional relationship, the Committee concluded that the family relationship alone should not bar the father or brother from criminal practice. It drew no adverse inference from the firm's recent decision to take on criminal work, and noted that attorneys are expected to adhere to RPC 3.5(a) and RPC 8.4(e).

Currency note

This opinion was issued in 1987, before New Jersey's adoption of the 2004 revisions to the Rules of Professional Conduct, which abolished the "appearance of impropriety" standard underlying conflict opinions of this era. 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 Treat this page as historical context, not current guidance.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: Can a prosecutor's relative practice criminal law in the same county?

A: Per the opinion, yes. The Committee held that the family relationship alone does not bar the father or brother from criminal practice where they never practiced together with the assistant prosecutor.

Q: Why did this differ from the opinions barring a prosecutor's former partners?

A: Those opinions (541, 191, 201) involved lawyers who had been partners of the prosecutor. Here the relatives had never had any professional relationship with the assistant prosecutor.

Background and rules framework

The opinion rests on the Committee's appearance-of-impropriety conflict precedents (Opinions 541, 191, 201), which barred former partners of a prosecutor from criminal practice in the prosecutor's county. It distinguishes them on the absence of any prior professional relationship and closes by referencing RPC 3.5(a) (prohibiting unlawful means to influence an official) and RPC 8.4(e) (conduct implying ability to improperly influence a government agency or official).

Citations and references

Rules of Professional Conduct:

• MR 3.5(a) / NJ RPC 3.5(a) (improperly influencing an official)
• MR 8.4(e) / NJ RPC 8.4(e) (implying ability to influence a government agency or official)

Other opinions cited:

• ACPE Opinion 541, 114 N.J.L.J. 387 (1984) (father barred where he had partnered with the son before the son became County Prosecutor)
• ACPE Opinion 191, 94 N.J.L.J. 33 (1971) (former partners of a full-time prosecutor)
• ACPE Opinion 201, 94 N.J.L.J. 225 (1971) (former partner of a full-time assistant prosecutor)

See also

• NJ ACPE Op. 627: Second Cousin of a Municipal Judge Serving as Prosecutor
• NJ ACPE Op. 602: A Municipal Judge's Partner and Forfeiture Work

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp599-1.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.

119 N.J.L.J. 632, April 16, 1987

OPINION 599

Conflict of Interest - Practice in Criminal Court Relative an Assistant Prosecutor

We are asked as to the propriety of the father or brother of an assistant prosecutor practicing criminal law in the county in which that assistant prosecutor (daughter-sister) is employed.

The inquiry states that there are over twenty assistant prosecutors in that county, and that the particular assistant prosecutor has never had any professional or financial relationship with her father or brother.

A conflict of interest situation is claimed by reason of the familial relation. The three persons concerned live in separate households in reasonably close proximity to one another.

In our Opinion 541, 114 N.J.L.J. 387 (1984), a father and son had practiced in partnership prior to the appointment of the son as County Prosecutor. We there held that the father, as well as the new firm of which he planned to be "of counsel", may not practice criminal law in the county for which his son and former partner was County Prosecutor. We based that conclusion on the "appearance of impropriety" citing our Opinion 191, 94 N.J.L.J. 33 (1971) where we disapproved criminal practice by the former partners of the full-time prosecutor in the county served by the prosecutor, and our Opinion 201, 94 N.J.L.J. 225 (1971) where we precluded a former partner of a full-time assistant prosecutor (one of fourteen assistant prosecutors) from practicing criminal law in the county of which the former partner was an assistant prosecutor.

In each of the two opinions cited, the former partners were related in the first degree. In Opinion 191, supra, we added a "Note" referring to the close blood relationship of the persons concerned, including a caveat that the holding should "not be applied beyond those facts."

The inquiry before us differs from the facts in the three opinions referred to above, in that although there is the relationship in the first degree, the assistant prosecutor has never practiced with either her father or her brother.

Given the absence of the previous professional relationship, the question arises whether or not the family relationship alone should bar the father or brother from such criminal practice. We think not.

Although the parent-brother's firm, while of long standing has only recently accepted the opportunity to practice criminal law, we draw no invidious inferences from that circumstance. Attorneys are expected to adhere to RPC 3.5(a) prohibiting use of unlawful means to influence an official, and to RPC 8.4(e) proscribing conduct that implies the ability to improperly influence a government agency or official.