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98 N.J.L.J. 822
September 25, 1975
ADVISORY COMMITTEE ON PROFESSIONAL ETHICS
Appointed by the New Jersey Supreme Court
Conflict of Interest
Prosecutor - Former Associate
Occupants of Former Law Office
An attorney, who was engaged in private practice in an office
which he leased, employed two attorney associates, neither of whom
was related to him. The attorney has now been appointed to and has
accepted the position of prosecutor for the county where he
practiced. One of the associates intends to continue practicing law
at the same office where he was formerly employed by the prosecutor
but as an associate of another law firm which will purchase the
prosecutor's office furniture, books and other fixed assets. The
prosecutor will not receive any remuneration for his practice.
The former associate has posed the follows; queries.
1. Would any of the lawyers occupying the prosecutor's former
offices be foreclosed from practicing criminal law in that county
(a) The prosecutor sublet the office to
them for the remainder of the term
of the lease?
(b) The prosecutor sublets to them for a
part of the term of the lease giving
them the irrevocable right to renew
for the remainder of the term at the
(c) The prosecutor assigns the entire
lease to them for the balance of the
term and secures from the landlord a
release of any further obligations
under the lease?
(d) The prosecutor assigns the entire
lease but receives no release from
(e) The prosecutor sublets the entire
leasehold giving to the subleases
the right to tenant the sublease
when they wish?
(f) The prosecutor sublets the entire
leasehold, giving the subleases the
right to terminate the sublease only
after the expiration of his term of
2. As to any criminal files already in process in the
prosecutor's former office, will appearance of impropriety be
sufficiently avoided, if the former associate continues to
represent such clients and all prosecuting personnel are "borrowed"
from another county?
It is apparent that the former associate of the newly
appointed prosecutor intends to sever all ties with the prosecutor
and to become an associate of another law firm which will use the
prosecutor's former office as its branch office. The inquirer is
referred to our Opinions 22, 87 N.J.L.J. 13 (1964); 201, 94
N.J.L.J. 225 (1971) and 202, 94 N.J.L.J. 309 (1971) as well as R.
1:15-3(a) and R. 1:15-4. It is clear that as long as the prosecutor
maintains any legal or economic control over the offices rented by
the inquirer or the law firm with which he is newly associated,
both are barred from practicing criminal law in the county where
the prosecutor serves. Only under the basis outlined in query 1(c)
above would that bar appear to be removed.
With respect to query 2, it goes without saying that as long
as the prosecutor maintains some control over the inquirer's office
space, the inquirer must withdraw from criminal actions which were
pending when the prosecutor took office.
Assuming that the office relationship between the prosecutor
and his former associates is resolved in a manner consistent with
query 1(c), there appears to be no reason to forbid a former
associate of a newly appointed prosecutor from engaging in the
practice of criminal law in the county where the prosecutor serves,
at least in those cases where information gained through the former
associate does not bear on the case being handled. In this
situation it would seem that the ethical problems are greater for
the prosecutor than for his former associate. This is so because
the prosecutor will have interests which are now antagonistic
toward his former client while the former associate will be cast in
precisely the same role of protecting the client's interests and
thus have no conflicting interest.
We are not unmindful of the injunction that attorneys must
avoid not only a conflict of interest but also the appearance of
such conflict. This concern would be adequately taken care of if
the prosecuting personnel who will handle the matters are
"borrowed" from another county as the inquirer indicates will be
the case. If such is not the case, then the inquirer cannot
represent those clients.
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