95 N.J.L.J. 410
April 27, 1972
Conflict of Interests
Attorney, Husband of
An advisory opinion is requested as to whether an attorney
whose wife is an assistant prosecutor who is neither a partner nor
shares office space with the inquirer in a county should be
precluded from practicing criminal law in the county.
It is our opinion that the representation of defendants in criminal matters in a county in which one's wife is assistant prosecutor would be improper in that the relationship of the attorneys would place an undue, and perhaps impossible, burden upon each attorney's duty to guard the confidences of his clients (see DR 4-101 and EC 4-1 and 4-4).
The N.Y. County Lawyers Ass'n., Committee on Professional Ethics, Question 461 (1957) made a similar determination finding that there was an impropriety in attorneys who shared the same office space representing opposing litigants. The American Bar Association, Standing Committee on Professional Ethics, Informal Opinion 692 (no date) has also determined that a law firm engaging in criminal practice could not ethically employ as a secretary in a confidential capacity the wife of a police detective officer. Both of these opinions were based at least in part upon the former Canons of Professional Ethics, Canon 37 (now DR 4-101).
Some questions would also arise under DR 5-101 requiring an attorney to refuse employment where his personal interests may impair his professional judgment. This would be especially true when DR 5-101 is read in conjunction with the Ethical Considerations and Disciplinary Rules (based upon former Canon 9) of the American Bar Association Code of Professional Responsibility admonishing lawyers to avoid even the appearance of professional impropriety.
We have considered but do not now decide the question of conflict of interest in the above situation since we have determined that the representation would be improper on other grounds.
We note our former Opinions 191, 94 N.J.L.J. 33 (1971), and 201, 94 N.J.L.J. 225 (1971), where we held that close kinsmen who
were former partners were barred from representing criminal defendants in a county where the former partner and relative was a
prosecutor. We think the rationale of those opinions would apply equally to a situation involving a husband and wife who are former
partners. That is not the situation before us. We, therefore, do not hold that under any and all circumstances lawyers with blood or marital relationship may not represent conflicting interests. Such representation should, however, be undertaken, if at all, with extreme caution in view of the mandate of the disciplinary rules
referred to above, relating to the avoidance of the appearance of impropriety.