97 N.J.L.J. 766
October 3, 1974
Conflict of Interest
Deputy Attorney General's Wife
Practicing Criminal Law
This inquiry presents the question of whether an attorney whose husband is a deputy attorney general with the Division of Criminal Justice may practice criminal defense law in the State of New Jersey.
The inquirer maintains that conflicts could be avoided on a case-to-case basis, for example, by his never handling an appeal where his wife was involved in the defense. He further contends that the open discovery rules in this State eliminate the risk of confidences being revealed by either of them to the other. Since he believes that Opinion 237, 95 N.J.L.J. 410 (1972), was based solely on the attorney's duty to guard the confidences of his client, he contends that his wife should be permitted to practice criminal defense law in the State of New Jersey even while he remains in the appellate section of the Division of Criminal Justice.
We do not agree with the inquirer's contention that open discovery rules eliminate the risk of disclosure of clients' confidences. Even more important, however, is the fact that the situation under consideration would inevitably present the appearance of conflict, even if no actual conflict exists. As we have previously stated in Opinion 191, 94 N.J.L.J. 33 (1971):
...If the profession is to occupy that position in public esteem which will inhale it to be of greatest usefulness, it must avoid not only all evil, but must likewise avoid the appearance of evil.
Applying the foregoing, if the attorney were to defend criminals in New Jersey where her husband is employed as a deputy attorney general assigned to the appellate section of the Division of Criminal Justice, the public would suspect that the attorney would receive preferential treatment and might use her influence for private gain.
We, therefore, believe that the inquirer's wife should not be permitted to practice criminal defense law in New Jersey while her husband is assigned as aforesaid. Also, see Opinion 237, 95 N.J.L.J. 410 (1972).