104 N.J.L.J. 204
August 30, 1979
Conflict of Interest
Associates of Attorney
Spouse of Assistant Prosecutor
In Opinion 237, 95 N.J.L.J. 410 (1972), we held that the
spouse of an assistant county prosecutor may not practice criminal
law in the county where the assistant prosecutor is employed. This
inquiry projects the question whether attorneys associated with the
spouse of an assistant prosecutor are similarly disqualified.
The inquirer wishes to employ as an associate an attorney who is married to an assistant prosecutor of the county in which the inquirer maintains his practice. The associate would not practice criminal law in that county, and the inquirer states that neither he nor any other attorney in his office would represent a defendant "who is being prosecuted" by the associate's spouse. As will be amplified hereinafter, we take this to mean that prior to accepting any criminal representation, the inquirer would ascertain that the associate's spouse (a) has not already participated, and will not thereafter participate, in any aspect of that particular matter; and (b) has not already acquired, and thereafter will have no reason to acquire, any specific knowledge of the matter. See In re Advisory Opinion on Professional Ethics No. 361, 77 N.J. 199, 207 (1978). We are asked whether, under these conditions, the inquirer and the attorneys in his office other than the prospective associate may continue to practice criminal law in the county which employs the associate's spouse as an assistant prosecutor. It is convenient to note here, in response to a secondary question put by the inquirer, that the defense of individuals charged with disorderly persons offenses in municipal court obviously constitutes the practice of criminal law within the purview of Opinion 237, supra, and for purposes of this opinion. See this Committee's Opinions 191, 94 N.J.L.J. 33 (1971), and 201, 94 N.J.L.J. (1971).
Our ruling in Opinion 237 was based upon a perception that "the relationship of the attorneys would place an undue, and perhaps impossible, burden upon each attorney's duty to guard the confidence of his clients." DR 4-101(B). We also considered, but did not decide, whether the situation would give rise to a conflict of interest in violation of DR 4-101, which requires an attorney to refuse employment where his personal interests may impair his professional judgment. See Opinion 346, 99 N.J.L.J. 714 (1976). In Opinion 288, 97 N.J.L.J. 766 (1974), our only other holding of interspousal disqualification in the practice of criminal law, we decided that the wife of a deputy attorney general assigned to the Division of Criminal Justice should not practice criminal defense law in New Jersey while her husband was so assigned. We believed that there was the risks of "disclosure of clients' confidences," that "the appearance of conflict" was present, and that "the public would suspect that the attorney would receive preferential treatment and might use her influence for private gain." Thus our
prior opinions have recognized three distinct grounds for disqualifying the spouse of a law enforcement attorney from practicing criminal law in the same jurisdiction: (1) possible conflict of interest under DR 5-101; (2) undue risk of disclosure of clients' confidences; and (3) the appearance of impropriety. We now consider whether any of these grounds are applicable to preclude attorneys associated with the spouse of an assistant prosecutor from criminal practice under the conditions outlined above.
(1) Possible conflict of interests. If, as posited, the inquirer's perspective associate will practice no criminal law in the county which employs the assistant prosecutor-spouse, and the inquirer and his firm will refrain from handling any matter in which that assistant prosecutor is or has been involved, then there could not arise any situation in which the spouses' personal or financial interests would be in conflict under DR 5-101. A fortiori, no conflict of interest could be imputed to the inquirer by reason of his associate's relationship with the assistant prosecutor.
(2) Undue risks of disclosing confidences. As indicated above, we understand that the inquirer would not undertake the defense of any case of which his associate's spouse has acquired knowledge by reason of participation at any stage. The inquirer's associate, on the other hand, would not practice criminal law in the county at all. Since neither spouse would have reason to know the confidential details of any matter in which their respective employers are adversaries, the undue pressures we discerned in Opinion 237 are not likely to arise here. Any disclosure of confidential information in this situation far more probably would be the result of deliberate unethical conduct which we are unwilling to assume. See Opinion 171, 93 N.J.L.J. 19 (1970).
(3) The appearance of impropriety. The Supreme Court has said that "[t]he 'appearance' of impropriety must be something more than a fanciful possibility. It must have some reasonable basis." Higgins v. Advisory Committee on Professional Ethics, 73 N.J. 123, 129 (1977). The question here is whether it would be reasonable to perceive the existence of a corrupt relationship between the inquirer and the prosecutor's office because one of the inquirer's
three associates, who does no criminal work, is married to one of approximately 20 assistant prosecutors. We think not. On one level the public has come to recognize that marriage partners are independent individuals fully capable of pursuing separate professional careers. See In re Gaulkin, 69 N.J. 186 (1976). Hence it is unlikely that either spouse here would be regarded as the alter ego of the other for purposes of establishing an improper alliance between their respective offices. From another pave, it would indeed be fanciful to assume that either the prosecutor or the inquirer, or any of their respective associates, would give the other side an improper advantage simply because two employees of their respective offices are married to one another. And any belief that the two attorneys themselves would compromise the interests of their respective employers for their own improper benefit, by exchanging confidential information or otherwise, would be sheer speculation.
In short, although there always will be those who infer impropriety from any personal relationship between a private practitioner and a public official, we cannot say that such an inference would be reasonably drawn in this situation. The inquirer's prospective associate wishes to practice law in the area of the marital domicile, and must start somewhere. Most law firms and attorneys in the county practice some criminal law, particularly in the municipal courts. If we were to hold in effect that the inquirer cannot hire the prospective associate unless he relinquishes his criminal practice, we could be rendering the prospective associate virtually unemployable in that county. Given the safeguards the inquirer proposes to establish if the relationship is permitted, we do not think the stricture against the appearance of impropriety compels that result.
We distinguish this situation from that presented in Opinion 191, supra, where we held that a firm consisting of the inquirer and the father and brother of the county prosecutor, who also was a member of the firm prior to his appointment, may not practice criminal law in that county. To similar effect, see Opinion 201, supra. We expressly limited Opinion 191 to "the particular facts... . . . revealing the close blood relationship between the members of the inquirer's firm and the prosecutor," and cautioned that the opinion "should not be applied beyond those facts." Here the inquirer's firm is not permeated with several close blood relationships with the prosecutor, and the prosecutor is not a former member of the firm. Different perceptions are involved. Our holding here, of course, assumes that the inquirer would not abuse his association with the spouse of an assistant prosecutor by stating or implying that he is thereby able to influence the prosecutor's office. DR 9-101(C). Additionally, we believe that full disclosure should be made to every prospective criminal client that the inquirer's associate is married to an assistant prosecutor but that neither will in any way be involved in his case. Subject to these observations and also to what follows, we hold that sufficient appearance of impropriety does not exist to preclude the inquirer's continued practice of criminal law under the circumstances presented by his inquiry, and that it would be ethically permissible for him to do so.
All of the foregoing presupposes complete noninvolvement by the assistant prosecutor spouse in any aspect of any criminal matter handled by the inquirer or his firm. Accordingly, the inquirer, before accepting any such case, must satisfy himself that this assistant prosecutor: (1) has not already participated in any aspect of the matter by way of investigation, trial preparation or otherwise; (2) has not already passed upon or exercised responsibility for any aspect of the matter; (3) has not already had occasion to acquire any particular knowledge of the matter; and (4) will not hereafter be assigned to work on any aspect of the case. Obviously such a screening would require the full cooperation of the prosecutor, and it is for the prosecutor to say whether a procedure of this type would be feasible in terms of the effective operation of his office. From the viewpoint of this Committee, however, it is an essential ethical safeguard and our holding here is expressly conditioned upon its adoption.