96 N.J.L.J. 1461
December 27, 1973
Conflict of Interest
Former Assistant Prosecutor Defending
One Investigated Before Resignation
The question presented is whether a former assistant
prosecutor may represent an accused in a matter which was pending
before the State Commission of Investigation during the time the
inquirer was an assistant prosecutor. The file in the matter was
first turned over to the prosecutor's office in which the inquirer
had been employed after the inquirer had resigned. An investigation
and prosecution were then conducted within the same prosecutor's
office and the inquirer was retained by the accused in connection
therewith two months after his resignation, and eight days
thereafter an indictment was returned. The inquirer thereafter
represented the accused at the arraignment and in pretrial matters
without any objection. The case is about to be set down for trial
but a question has now been belatedly raised concerning the
propriety of the inquirer's representing the accused.
N.J. Advisory Committee on Professional Ethics, Opinion 207, 94 N.J.L.J. 451 (1971) would seem to cover this inquiry. That opinion has been cited by the Court with approval in In re Biederman, 63 N.J. 396, 399 (1973). The basic question is whether there is a distinction between the situation where the investigation was made by the S.C.I. rather than by the particular prosecutor's office employing the inquirer as was the case in the situation dealt with in Opinion 207, supra.
The State Commission of Investigation, it is true, is not an accusatory body but was created to discover and publicize facts which might either be useful to the legislature or to aid law enforcement by gathering evidence of crime and, in the proper case, transmitting it to the appropriate law enforcement agency, N.J.S.A. 52:9M-2; Zicarelli v. N.J. State Commission of Investigation, 55 N.J. 249 (1970). The commission is, however, directed to cooperate with the Attorney General or county prosecutors or other law enforcement agency upon request N.J.S.A. 52:9M-5.
The criminal business of the State is prosecuted by the Attorney General and the county prosecutor. N.J.S. 2A 158. Each prosecutor is vested with the requisite powers and duties within his county, N.J.S. 2A:158-5, and the assistant prosecutors are empowered to exercise the powers and duties of the prosecutor in each county, N.J.S. 2A:158-18.
From the foregoing it would appear of necessity that the S.C.I. in the instant case was engaged during inquirer's tenure as assistant prosecutor with the investigation of a matter within the jurisdiction of the office of the prosecutor of the county in which he was assistant prosecutor and which ripened within slightly over two months after inquirer's departure into an indictment. The rationale of Opinion 207, supra, is the unacceptable appearance of
possible impropriety to the general public. In that case as in this one the fact that the inquirer had no connection with or knowledge of the file is not determinative. We find it difficult to believe that the public would be able to understand the distinction here sought to be made, particularly in view of the time frame involved.
The public would, we think, merely be aware that a criminal investigation within the jurisdiction of inquirer's former office was conducted while the inquirer was a part of the law enforcement apparatus entrusted with the discovery and prosecution of crimes. We therefore hold that under the particular facts presented here
the inquirer's representation of the accused is not proper.