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                                             96 N.J.L.J. 751
                                            June 21, 1973


Appointed by the New Jersey Supreme Court


Conflict of Interest
Former Municipal Prosecutor
Representing Private Client

    We have been asked for our opinion as to the propriety of an attorney representing a client under the following circumstances. The attorney was formerly a municipal prosecutor. While he was acting in that capacity, a prospective client brought two complaints in the municipal court for an alleged zoning violation. The first complaint was dismissed with the client's consent. The attorney states that he played a minimal role in this matter, his services consisting mainly of the mechanical function of presenting the proposed dismissal to the municipal court judge for his approval.
    The prospective client's second complaint dealing with the same alleged zoning violation was tried in the municipal court. The client was represented in that matter by private counsel and the inquiring attorney played no part in any of the proceedings. The prospective client now seeks to retain the inquirer for the purpose of a civil suit for damages arising out of the alleged zoning violation. The inquirer is no longer municipal prosecutor.
    In his memorandum the inquirer refers us to DR 9-101(B) of the Code of Professional Responsibility. A review of the history of that section may assist in the resolution of the question DR 9-101(B), as adopted by our Supreme Court, provides: "A lawyer shall not accept private employment in a matter in which he had a substantial responsibility while he was a public employee." The source of this disciplinary rule is former Canons of Professional Ethics, Canon 36. That canon provided in part: "A lawyer, having once held public office or having been in the public employ, should not after his retirement accept employment in connection with any matter which he has investigated or passed upon while in such office or employ." The A.B.A. Comm on Professional Ethics and Grievances dealt with this canon on at least two occasions, in Opinions 134 (1935) and 135 (1935). In Opinion 134 that committee held that a member of the staff in a state attorney's office could not appear as counsel for a defendant whose case originated, was investigated or passed upon either by the lawyer or his associates while he was a member of the state attorney's staff. Opinion 134 states: "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."     
    Opinion 135 holds that a prosecuting attorney who investigated an automobile accident but determined that criminal prosecution was not warranted, may not represent one of the parties in the accident in a civil suit.

    DR 9-101(B) in the preliminary draft of the Code of Professional Responsibility, dated January 15, 1969, states: "A lawyer shall not accept private employment in a matter in which he acted as investigator or exercised more than perfunctory responsibility while he was a public employee." This language is quite similar to the language of Canon 36 and follows the interpretation placed on it by the A.B.A. opinions referred to. The language in its final form is apparently an attempt to make the rule somewhat broader using the term "substantial responsibility" without referring specifically to the acts of investigation. In the present matter the attorney states that his only function of any consequence in both complaints was to present the dismissal of the first complaint to the municipal court judge for approval. In our opinion the attorney had neither "substantial responsibility" in the language of DR 9-101(B) nor did he exercise more than "perfunctory responsibility" in the language of the rule as originally proposed and, therefore, he may with propriety undertake the proposed representation.

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