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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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