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94 N.J.L.J. 33
January 21, 1971
ADVISORY COMMITTEE ON PROFESSIONAL ETHICS
Appointed by the Supreme Court of New Jersey
OPINION 191
Conflict of Interest
Former Partners of Full-
Time Prosecutor
The inquirer is a member of a law firm consisting of a father,
two sons, and himself. One of the sons has recently been appointed
and confirmed as the Prosecutor in a county where that office
requires full-time service. Upon being sworn in as Prosecutor, the
son will resign from the firm and leave private practice. The firm
will then consist of the father, the brother and the inquirer.
The following questions are addressed to this Committee:
1. Can I or any member of our firm represent
defendants in criminal matters in the county where
our former partner is now full-time Prosecutor?
2. Can I or any member of our firm continue to
represent defendants in criminal matters in the
county where our former partner is now full-time
Prosecutor where we had been retained prior to his
having been appointed full-time Prosecutor?
3. Can I or any member of our firm represent
defendants charged with disorderly conduct in the
municipal courts in the county where our former
partner is now full-time Prosecutor?
All of the aforesaid questions are answered in the negative.
Inherent in the factual situation presented is the probability of
public criticism, whether based in fact or not, of the use of
influence of private gain. The American Bar Association, Committee
on Professional Ethics, Opinion 49 (1931), adopted by this
Committee in our Opinion 168, 93 N.J.L.J. 8 (1970), states the
basic principle to be applied:
... If the profession is to occupy that position in pubic
esteem which will enable it to be of greatest usefulness,
it must avoid not only all evil, but must likewise avoid
the appearance of evil.
Applying the aforegoing, it seems clear that if the inquirer's
firm appeared as the attorneys for criminals accused within the
same county where the former partner (son and brother) is now the
full-time prosecutor, the public would suspect that the inquirer's
firm would receive preferential treatment and might use its
influence of private gain. It is our opinion that such conduct
would be improper.
The following inquires are also made:
4. May I or any member of our firm represent defendants
in criminal matters in counties other than that in
which our former partner is now full-time
Prosecutor?
5. May I or any member of our firm continue to
represent defendants in counties other than that in
which our former partner is now full-time
Prosecutor?
6. May I or any member of our firm represent
defendants charged with disorderly person
violations in municipal courts in counties other
than that in which our former partner is now full-
time Prosecutor?
The Committee is of the opinion that the inquirer's questions
4, 5 and 6, are to be answered in the affirmative. The factual
situation giving rise to the negative answer to the first three
questions does not exist outside of the county where the former
partner (son and brother) is now full-time Prosecutor.
Summarized, it is the opinion of this Committee that the
inquirer's firm can no longer practice criminal law in the county
where the former partner (son and brother) is now full-time
Prosecutor, and that this restriction does not apply outside of
that county's limits.
NOTE: This opinion applies to the particular facts set forth
in the inquiry revealing the close blood relationship between the
members of the inquirer's firm and the prosecutor, and should not
be applied beyond those facts.
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