96 N.J.L.J. 1150
September 27, 1973
Conflict of Interest
This inquiry concerns the question of whether or not an
attorney may represent defendants accused of crime in the county
where he is representing the county prosecutor on a charge of
unethical practices. The ethics matters have not yet reached the
In both activities the attorney is counseling and advocating on behalf of persons faced with accusations, the one criminal, the other unethical. The problem arises out of whether or not an attorney's activity as counsel to a prosecutor gives rise to the issue of the appearance of impropriety, Disciplinary Rule 9-101, even though ethics matters do not reach public attention until they go before the Supreme Court on order to show cause.
The interest of the county prosecutor is in the enforcement of law and in the trial of persons accused of crime. An attorney for a prosecutor in an ethics matter, or for that matter any personal counsel of a prosecutor should he find it necessary to have one for his real estate, trust work, tax work or the like, does not necessarily deal with the work of the prosecutor with respect to criminal matters in his county; nor does such professional employment make the attorney for the prosecutor an associate or an employee of the prosecutor in the sense we have considered associates and employees for conflict purposes.
Yet, the close personal relationship of counsel to a prosecutor, for whatever purpose, necessarily invites in the public mind the appearance of impropriety. There is, also, a question of whether or not the attorney's professional judgment on behalf of either client, prosecutor or accused, may be adversely affected by his representation of the other, DR 5-105(B). In our opinion, counsel to a prosecutor should refrain from representing accused in the county while he represents the prosecutor of that county.