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120 N.J.L.J. 317
August 13, 1987
ADVISORY COMMITTEE ON PROFESSIONAL ETHICS
Appointed by the Supreme Court of New Jersey
OPINION 604
Private Practice of Criminal Law
by Spouse of Deputy Attorney General
This inquiry concerns potential ethical proscriptions for a
lawyer practicing criminal defense work when his spouse is employed
as an attorney in the Organized Crime and Racketeering Bureau of
the New Jersey Division of Criminal Justice. The spouse is one of
160 lawyers in the Division and one of 21 in the Bureau.
We were asked whether Opinion 237, 95 N.J.L.J. 410 (1972), and
Opinion 288, 97 N.J.L.J. 766 (1974) are applicable to this
situation and for the answers to five specific questions:
1. Whether or not a lawyer in private practice is pro
hibited from practicing criminal defense law when
the case is prosecuted by a Deputy Attorney General
in a spouse's section?
2. Whether or not a lawyer in private practice is pro
hibited from practicing criminal defense law when
the case is prosecuted by a Deputy Attorney General
who is not assigned - to a spouse's section?
3. Whether or not a lawyer in private practice whose
spouse is a Deputy Attorney General is prohibited
from practicing criminal defense law when the case
is prosecuted by a County Prosecutor?
4. Whether or not a lawyer in private practice whose
spouse is a Deputy Attorney General is prohibited
from practicing criminal defense law in the
Municipal Courts in the State of New Jersey.
5. What prohibitions are there for office partners and
associates in practicing criminal defense law in
the State of New Jersey when the spouse of one is a
Deputy Attorney General?
Opinions 237, supra, and 288, supra, no longer represent the
view of this Committee in light of In re Gaulkin, 69 N.J. 185
(1976), and Higgins v. Advisory Committee on Professional Ethics,
73 N.J. 123, 129 (1977).
Opinion 434, 104 N.J.L.J. 204 (1979), noted that the
proscription of the practice of criminal law by spouses of
attorneys on Prosecutors' staffs is based on (1) possible conflicts
of interest under DR 5-101; (2) undue risk of disclosure of
clients' confidences; (3) the appearance of impropriety. In
Higgins, the New Jersey Supreme Court said, "... the appearance of
impropriety must be more than a fanciful possibility. It must have
some reasonable basis." Id.
Gaulkin states that marital partners are independent and fully
capable of pursuing separate professional careers, and that it is
not reasonable to assume a relationship is corrupt merely because
of marital ties.
Thus, a lawyer in the private practice of criminal defense law
is not proscribed from all such work if the spouse is a Deputy
Attorney General. To avoid any appearance of impropriety, the
lawyer must make sure, as Opinion 434 indicates, before accepting
a criminal case that the spouse "... (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." In addition, the attorney should disclose the
spouse's position to any potential client.
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