Rutgers School of Law, OAL case acp317

98 N.J.L.J. 822
September 25, 1975

ADVISORY COMMITTEE ON PROFESSIONAL ETHICS

Appointed by the New Jersey Supreme Court

OPINION 317

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 if:
        (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 same rental?

        (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 the landlord?

        (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 office?

    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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