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                                         99 N.J.L.J. 610
                                        July 8, 1976


Appointed by the New Jersey Supreme Court


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).

    While it may be true, as the inquirer suggests, that any information the former assistant prosecutor may have obtained during his public employment would be much less useful in an appellate matter than in a criminal trial, the appearance of conflict is equally strong. The prohibition against a former prosecutor or assistant prosecutor representing a criminal defendant who was investigated during his tenure in public office is based on the unacceptable appearance of possible impropriety to the general public. Opinion 276, 96 N.J.L.J. 1461 (1973); Opinion 207, 94 N.J.L.J. 451 (1971). Furthermore, it would be incongruous to rule that the inquirer could represent A on appeal, but that if he were successful and the appellate court ordered a new trial, the inquirer would be barred from representing the same defendant at the new trial.
    We therefore believe that the representation on appeal as described in this inquiry would be ethically impermissible.

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