Can a former prosecutor bring a civil case against a defendant he caused to be indicted on the same facts?

Plain-English summary

The inquiry asked whether a former prosecutor may undertake a civil action, arising out of fraud and theft, against a defendant under pending indictment on the same evidence, where the same lawyer initiated and carried on the criminal proceeding. The facts established that as prosecuting attorney the inquirer had knowledge of the facts, including confidential information, on which the civil action would be based, and had substantial responsibility in the criminal matter, having initiated and carried out the process leading to the indictment.

The Committee applied RPC 1.11, under which a former prosecutor with prior knowledge and responsibility in a criminal matter may not participate in any civil proceeding relating to that matter. Citing the Supreme Court's decision reviewing Opinion 361, the Committee read RPC 1.11, grounded in the appearance of impropriety, to cover broadly all private employment in any subsequent matter, including representation of the fraud victim in the later civil action.

The Committee concluded that the proposed representation is impermissible.

Currency note

This opinion was issued in 1989, before New Jersey's adoption of the 2004 revisions to the Rules of Professional Conduct, which abolished the "appearance of impropriety" standard the Committee relied on here. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule mentioned here.

Common questions

Q: Can a former prosecutor sue, on behalf of a victim, the defendant he indicted on the same facts?

A: Per the opinion, no. Because the inquirer had knowledge (including confidential information) and substantial responsibility in the criminal matter, RPC 1.11 barred the related civil representation.

Q: What made the bar apply here?

A: The opinion turned on the lawyer having "knowledge of the facts, including confidential information," and "substantial responsibility" in the criminal matter, having initiated and carried out the indictment process.

Q: How broadly did the Committee read RPC 1.11?

A: The Committee read the Rule, based on the appearance of impropriety, to cover "broadly all private employment in any subsequent matter," including representing the fraud victim in a later civil suit.

Background and rules framework

The opinion applies NJ RPC 1.11 (Model Rule 1.11), governing successive government and private employment. As construed at the time, the Rule rested on the appearance-of-impropriety standard and barred a former government lawyer from later private employment in a matter in which the lawyer had substantial responsibility and confidential knowledge while in government service.

Citations and references

Rules of Professional Conduct:

• MR 1.11 / NJ RPC 1.11 (successive government and private employment)

Cases:

• In re Advisory Opinion on Professional Ethics No. 361, 77 N.J. 199 (1978), Supreme Court review of Opinion 361

Other opinions cited:

• ACPE Opinion 361, 100 N.J.L.J. 1 (1977), mod., 77 N.J. 199 (1978)

See also

• NJ ACPE Op. 705: Former Government Attorneys and Screening
• NJ ACPE Op. 726: Conflict of Interest, Government Lawyers
• NJ ACPE Op. 660: Deputy AG Joining an Insurance-Coverage Firm

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp634-1.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.

124 N.J.L.J. 1420, December 7, 1989

OPINION 634

Successive Government and Private Employment--Former Prosecutor Taking Civil Case Against Defendant He Caused to be Indicted

May a former prosecutor undertake a civil action arising out of fraud and theft against a defendant under pending indictment on the same evidence, notwithstanding the criminal proceeding was initiated and carried on by that former prosecutor?

This inquiry makes clear that as prosecuting attorney, the inquirer has knowledge of the facts, including confidential information, on which the later civil action is to be based. In addition, he had substantial responsibility in the criminal matter. He initiated and carried out the process leading to the indictment of the defendant to be sued in the civil action.

Under RPC 1.11, a former prosecutor with prior knowledge and responsibility in a criminal matter may not participate in any civil proceeding relating to that matter. See In re Advisory Opinion on Professional Ethics No. 361, 77 N.J. 199 (1978).

While the discussion in Opinion 361, 100 N.J.L.J. 1 (1977), mod. In re Advisory Opinion on Professional Ethics No. 361, supra, 77 N.J. 199, deals with the subsequent representation of a private client who was previously a defendant in the criminal matter, RPC 1.11, based as it is on the appearance of impropriety, covers broadly all private employment in any subsequent matter. We read that as including representation of the fraud victim in a later civil action. Hence the proposed representation is impermissible.