86 N.J.L.J. 718
December 19, 1963
Assignment Of Counsel -
The inquiry in this case is whether a member of the bar of
this State, who is presently engaged as Supervisor of the New
Jersey Second Injury Fund, which is part of the State Workmen's
Compensation Division, should be excused, by reason of his being a
State employee, from representing indigent defendants in criminal
The attorney who poses the problem apparently is under the impression that, being an employee of the State of New Jersey, he cannot ethically represent defendants charged with violating he criminal laws of this State.
R.1:12-9(e) provides for the assignment of counsel in indigent cases by the Assignment Judge of each county and vests in him the full power to excuse counsel, except as stated in R. 1:12-9(g). The latter exception is not here pertinent.
Involved here are Canon 31 of the Canons of Judicial Ethics and Canons 4 and 6 of the Canons of Professional Ethics. Judicial Canon 31 proscribes the practice of law by one holding judicial position. Professional Canon 4 states that a lawyer assigned as counsel for an indigent prisoner should not be asked to be excused for a trivial reason. Professional Canon 6 refers to the representation of conflicting interests, the necessity of a lawyer disclosing to his client all of the circumstances of his relations with other parties to the cause, and the requirement that a lawyer give his undivided fidelity to his client.
The attorney making this inquiry maintains a law office, and presumably practices law, in addition to performing his duties for the Workmen's Compensation Division. He is not a judge of the Workmen's Compensation Court and his office is not such as to make Judicial Canon 31 applicable to him. Even the judges of the Work-
men's Compensation Court have been held by our Supreme Court not to be judicial officers. See Campbell v. Dept. of Civil Service, 39 N.J. 556 (1963).
Nor, in our opinion, do Professional Canons 4 and 6 preclude an attorney so situated from representing an indigent defendant in a criminal case. See American Bar Association Committee on Professional Ethics Opinion No. 55 (12/14/31). There is no conflict of interest merely because the attorney is an employee of the State.
No State law forbids a lawyer employed by the State from appearing in these cases. Of course, if the crime with which the defendant is charged is one involving the State itself - such as embezzling State funds - then it must be assumed that upon these facts being made known to the Assignment Judge any attorney situated as is the one making this inquiry would be excused. This Committee sees no impropriety in counsel acting in any other case, nor any conflict in interest.