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                                         129 N.J.L.J. 513
                                        October 17, 1991

ADVISORY COMMITTEE ON PROFESSIONAL ETHICS

Appointed by the Supreme Court of New Jersey

OPINION 652

Conflict of Interest: Law Firm
Given Authority to Determine
Whether Defendant Qualifies for
Public Defender Assistance
Negotiating Representation for a
Fee After a Finding of Non-Indigency

    A county bar association has inquired as to the propriety of a public defender for a municipal court negotiating a fee for services agreement with a defendant who fails to meet the prescribed qualifications for legal services furnished by the public defender. The public defender will be paid by the municipality and will decide whether a defendant meets the criteria of eligibility for representation by the public defender.
    We are of the opinion that a law firm hired by a municipality as a public defender should not represent an accused after a review of the latter's financial affairs shows that the defendant does not qualify for the public defender program.
    Under the proposal, the initial decision as to qualification for the services of the municipal public defender is made by the law firm having the defender contract. The process calls for the defendant to appear before an "intake" staff member and disclose relevant financial data. Then
        ... the client will meet with an attorney who will advise the prospective client as to the law firm's position on program eligibility.

    The plan calls for a fee of $200 for each appearance for the services of the defender under the plan; except where the court directs otherwise. It provides:
        It is an objective of this plan to assure that those who utilize the services of the Public Defender initially qualify for these services and pay, according to their means, a fair share of the cost.

    All revenues received via payment from defendants, or through liens processed under N.J.S.A. 40:6A-1.4 where expenses exceed $150, are to be equally divided between city and defender. When the criteria of eligibility precludes use of the public defender's office, the attorney will then negotiate with the defendant to represent that person as a private client.
    It is our opinion that where a public defender program permits the defender's law office to determine eligibility and then negotiate a fee for undertaking the defense of persons who fail to qualify for the public defender program, there is clearly an appearance of impropriety within the constraints of RPC 1.7(b) and (c).

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