99 N.J.L.J. 610
July 8, 1976
Conflict of Interest
Criminal Appeal by Former
Assistant Prosecutor's Firm
The inquirer has been retained to represent both A and B regarding the same clogged criminal offenses. At the time the representation was commenced, A had already been convicted and retained the inquirer to prosecute an appeal while B was still awaiting trial on the same charges.
The trial court, on its own motion, held that the inquirer could not represent B at the trial level because an associate in his law firm was a member of the prosecutor's staff during the period when the crimes in question were being investigated. The inquirer seeks a determination from this Committee as to whether the same considerations prevent him from representing A on appeal.
DR 9-101(B) provides that: "A lawyer shall not accept private employment in a matter in which he had substantial responsibility while he was a public employee." Although the facts submitted do not indicate whether the former assistant prosecutor had substantial responsibility in any phase of the investigation of the crimes with which A and B had been charged, we assume from the action of the trial court that he had. Cf. our Opinion 329, 99 N.J.L.J. 433 (1976).