124 N.J.L.J. 1420
December 7, 1989
Successive Government and
Prosecutor Taking Civil Case
Against Defendant He
Caused to be Indicted
May a former prosecutor undertake a civil action arising out of fraud and theft against a defendant under pending indictment on the same evidence, notwithstanding the criminal proceeding was initiated and carried on by that former prosecutor?
This inquiry makes clear that as prosecuting attorney, the inquirer has knowledge of the facts, including confidential information, on which the later civil action is to be based. In addition, he had substantial responsibility in the criminal matter. He initiated and carried out the process leading to the indictment of the defendant to be sued in the civil action.
Under RPC 1.11, a former prosecutor with prior knowledge and responsibility in a criminal matter may not participate in any civil proceeding relating to that matter. See In re Advisory Opinion on Professional Ethics No. 361, 77 N.J. 199 (1978).
While the discussion in Opinion 361, 100 N.J.L.J. 1 (1977), mod. In re Advisory Opinion on Professional Ethics No. 361, supra, 77 N.J. 199, deals with the subsequent representation of a private client who was previously a defendant in the criminal matter, RPC 1.11, based as it is on the appearance of impropriety, covers broadly all private employment in any subsequent matter. We read that as including representation of the fraud victim in a later civil action. Hence the proposed representation is impermissible.