Rutgers School of Law, OAL case ACPE068

88 N.J.L.J. 91
February 11, 1965

ADVISORY COMMITTEE ON PROFESSIONAL ETHICS

Appointed by the New Jersey Supreme Court

OPINION 68

Assistant Prosecutor's Partner Bail Bonds

An opinion is requested by a member of a law partnership which has its office in one county but one of whose partner is an assistant prosecutor in another county. The inquirer states that his firm represents an insurance company which writes bail bonds and that from time to time the inquirer will be bringing court proceedings in the county where his office is with respect to the forfeiture of bonds or being relieved from bonds where a defendant has violated the terms of the bond. He will not appear in the county where the partner is an assistant prosecutor. In taking such proceedings in the criminal division of the court, motion papers are served on the prosecutor of the county and, in the case of forfeiture motions, notice is also served on the county counsel as representative of the county treasurer.
There appears to be no Canon of Professional Ethics which specifically provides the answer to this inquiry, nor any language in any canon which expressly preludes the inquirer from pursuing the course of action contemplated. But, as the Preamble to the Canons states, "No code or set of rules can be framed, which will particularize all the duties of the lawyer in the varying phases of litigation or in all the relations of professional life."

As we said in NJ. Advisory Committee on Professional Ethics, Opinion 22, 87 N.J.L.J. 13 (1964), an attorney should so conduct himself as to be above suspicion. It is almost inevitable that, with his partner an assistant prosecutor in one county, action on the part of the inquirer against the prosecutor in another county to permit the vacating of a bail bond, forfeiture, or similar action, will give rise to certain unfavorable interferences that the position of the inquirer's partner in the prosecutor's office of the adjoining county will in some way be of assistance to him. In a sense, counsel in arguing against the forfeiture of a bail bond will be arguing on behalf of the defendant and against the State. Such a position could be considered as in violation of R. 1:26-3(a), which rule is made applicable to partners of county prosecutors and their assistants by R.1:26-4.
It is important for the proper administration of justice that situations which could cause such inferences to arise be avoided. As was stated in the above-cited opinion, lawyers ought to conduct themselves in such a way as not to impair the confidence of the community in the administration of justice. Thus, we believe that counsel should not pursue the course of conduct described.

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