94 N.J.L.J. 451
May 27, 1971
Conflict of Interest
Assistant Prosecutor Defending
Indicted After Resigning
The question has been raised as to whether an attorney who was
an assistant county prosecutor when a criminal investigation was
conducted by that office may, after resigning as such assistant
prosecutor, defend one of the persons indicted as a result of that
A) he played no part in the investigation; and
B) he resigned as assistant prosecutor two months before the alleged irregularities were brought to light by the investigation.
Canons of Professional Ethics, Canon 36 would prevent this representation if he had participated in the investigation. That this provision extends to the present situation is clearly set forth in A.B.A. Comm. on Professional Ethics and Grievances, Opinion 134 (1935), wherein it is stated:
A lawyer retiring from public employ cannot utilize or seem to utilize the fruits of the former professional relationships in subsequent private practice involving a matter investigated or passed upon either by himself or others of the public legal staff during the time he was identified with it.
One of the primary purposes of the rules of professional ethics is to preserve and protect the reputation of lawyers. The general public might well know of the investigation and indictment without knowing the exact date that the inquirer resigned as assistant prosecutor or without knowing whether or not the inquirer had been involved in the particular investigation. N.J. Advisory Committee on Professional Ethics, Opinion 6, 86 N.J.L.J. 718 (1963), states:
...To maintain public confidence in the bar, it is necessary not only to avoid actual wrongdoing, but even the appearance of wrongdoing.
It would, therefore, be improper for the inquirer to represent the accused.