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104 N.J.L.J. 204
August 30, 1979
ADVISORY COMMITTEE ON PROFESSIONAL ETHICS
Appointed by the Supreme Court of New Jersey
OPINION 432
Wife of Assistant County
Prosecutor - Legal Secretary in County
The following inquiry has been made: "May the spouse of a
full-time assistant county prosecutor be employed by a law firm
which practices criminal law in that county?" At the time of making
the inquiry, the inquirer as an assistant county prosecutor, had
been assigned by the prosecutor to the trial section of the office,
as a trial attorney. We are informed that office procedure provides
that cases following indictment are forwarded to the chief of the
trial section who then assigns each case to a trial attorney in his
section. Since the initial inquiry we have been advised that the
inquirer has been elevated from his position as trial attorney to
the position of chief of litigation section and as such is
supervisor to all trial attorneys, investigators and clerical staff
of that section.
The inquirer's wife apparently is an experienced legal
secretary and was employed for a number of years in a law firm in
a county other than that in which the inquirer was assistant
prosecutor. By reason of their recent marriage and the distance of
travel between her employment and her present residence, she
changed jobs and secured employment in the same county as her
husband is serving as assistant prosecutor. The law firm for which
she is now employed is apparently engaged in practice in criminal
cases in that county. We are of the opinion that the answer to the
inquiry is in the affirmative and that the cases coming to his
attention in which his wife's employer is involved should be
handled in the same manner as all other cases pending in the
prosecutor's office. In this Committee's Opinion 170, 93 N.J.L.J.
18 (1970), we held that an attorney whose brother was employed as
an investigator by the county prosecutor's office was not precluded
from defending a criminal prosecution, and stated:
In the opinion of the Committee, the performance of
all required legal services by the assigned attorney is
not improper or unethical by reason of the brother
relationship of the assigned attorney and the
investigator in the prosecutor's office under the facts
presented by this inquiry, when testimony will not be
required of the brother.
In Opinion 171, 93 N.J.L.J. 19 (1970), which involved an inquiry by
an attorney who sought to practice criminal law when his mother was
employed as secretary to the chief probation office of the county,
we held that there were no improprieties under the circumstances
therein as outlined. We there stated:
In the instant case the only possibility of improper
advantage is collateral, and unethical conduct of the
attorney or corrupt conduct of his mother, respectively,
in requesting or delivering confidential information
would have to be assumed. Such conduct should not be
assumed. We are aware that an attorney should not only
avoid all impropriety, but should otherwise avoid the
appearance of impropriety. N.J. Advisory Committee on
Professional Ethics, Opinion 8, 86 N.J.L.J. 718 (1963).
Also, it is realized if the profession is to occupy the
position in public esteem which will enable it to be of
the greatest usefulness, it must avoid not only all evil
but must likewise avoid the appearance of evils ABA Comm.
on Professional Ethics and Grievances, Opinion 49 (1931).
Thus, the issue emerges as to whether mere employment of
a close relative in a governmental department, which
maintains confidential records for the benefit of the
court, is sufficient to prohibit an attorney from
practicing before such court on the basis of improper
appearance alone. We are of the opinion that in the
absence of actual misconduct, which could be dealt with
by established procedure when discovered, sufficient
appearance of impropriety does not exist to classify the
attorney's proposed practice as unethical.
Our Supreme Court in Higgins v. Advisory Committee on Professional
Ethics, 73 N.J. 123, 129 (1977), stated:
We agree that the 'appearance' of impropriety must
be something more than a fanciful possibility. It must
have some reasonable basis. However, where as here, a
reasonable basis is shown to exist, 'appearance' alone
may be sufficient to present an ethical problem even
though no actual impropriety exists.
In our opinion, based upon the facts herein presented, a reasonable
basis of a showing of impropriety does not exist. In considering
inquiries involving attorney and special business or professional
relationships in which ethical consideration may be involved, we
must do so keeping in mind the comments of Chief Justice Hughes, in
In re Gaulkin, 69 N.J. 185, 198 (1976), namely:
As to the community's perception of the spouse's
exercise of that right, emerging concepts of special
independence and autonomy in activities, development,
interests, rights and responsibilities lead us to
appraise our earlier assessment of probable public
discernment and sophistication as no longer realistic.
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