96 N.J.L.J. 305
March 15, 1973
Conflict of Interest
Former Prosecutor Representing
Convicted Policeman on Retirement Appeal
The inquirer asks if he may ethically represent a person whom
he, as a former assistant prosecutor, tried and whose conviction he
attained for obtaining money under false pretenses, a result of
that conviction the defendant was denied retirement benefits, upon
his resignation from the Newark Police Department. The proposed representation involves an appeal to the Civil Service Commission of such denial of retirement benefits.
The inquirer states that he had been privy to secret and confidential information in the criminal case but he cannot "conceive of any circumstances" where any such information would be relevant to the Civil Service appeal. He further states, both in his letter of inquiry and in his brief memorandum, that the basis of the Civil Service appeal "apparently" in no way considers the substance of the criminal charge. He does not, however, categorically deny any relation. He states that the issues on appeal will relate to the administrative procedure utilized and the severity of the punishment.
It is clear that the inquirer may not properly represent the retired policeman in this matter. The State, its subdivisions, and citizens were his former clients when he prosecuted his proposed client in a matter which, to say the least is related to the matter in which he now proposes representation against the representatives of his former clients. His use of the word "apparently" as qualifying his assertions, that the criminal charge is not involved in the Civil Service appeal may reflect his own doubts that the matters are unrelated. In our minds the these doubts must be resolved to the contrary. The conviction constitutes the very basis of the denial of Civil Service benefits. It is scarcely conceivable, for example, that, on the issue of the severity of Civil Service penalty, the substance of the criminal acts which are the basis of the conviction would not be directly involved. Thus, there exists not only the possibility of his being faced with a duty to his present client to reveal confidential material learned in his role as prosecutor (and perhaps a duty to the appellate tribunal as well) but there is also a basic conflict in the role which be played as prosecutor in obtaining a conviction based on the facts and that which he would play as attorney for the convicted ex-policeman in seeking to minimize the effects of those same facts before another tribunal.
While we have sometimes approved of representation against former clients, e.g., Opinion 154, 92 N.J.L.J. 353 (1969); Opinion
158, 92 N.J.L.J. 641 (1969); Opinion 216, 94 N.J.L.J. 677 (1971), we have carefully limited that representation to matters which are "entirely unrelated" - even then admonishing caution.
Where there was some relation between the former and contemplated issues we have uniformly held the contemplated representation against a former client's interests to be improper, Opinion 6, 86 N.J.L.J. 718 (1963); Opinion 42, 87 N.J.L.J. 285 (1964); Opinion 97, 89 N.J.L.J. 507 (1966); Opinion 135, 91 N.J.L.J. 673 (1968); Opinion 155, 92 N.J.L.J. 358 (1969); Opinion 234, 95 N.J.L.J. 253 (1972); Opinion 246, 95 N.J.L.J. 1265 (1972). Those opinions adequately set forth the rationale for this one. The difficulties involved are not lessened but aggravated by the fact that, in this case, the former client was the public because in this case informed consent by the former client to the proposed representation is not possible.
The contemplated representation is not proper under DR 5-105 and 4-101.