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                                         104 N.J.L.J. 204
                                         August 30, 1979


Appointed by the Supreme Court of New Jersey


Wife of Assistant County
Prosecutor - Legal Secretary in County

    The following inquiry has been made: "May the spouse of a full-time assistant county prosecutor be employed by a law firm which practices criminal law in that county?" At the time of making the inquiry, the inquirer as an assistant county prosecutor, had been assigned by the prosecutor to the trial section of the office, as a trial attorney. We are informed that office procedure provides that cases following indictment are forwarded to the chief of the trial section who then assigns each case to a trial attorney in his section. Since the initial inquiry we have been advised that the inquirer has been elevated from his position as trial attorney to the position of chief of litigation section and as such is supervisor to all trial attorneys, investigators and clerical staff of that section.
    The inquirer's wife apparently is an experienced legal secretary and was employed for a number of years in a law firm in a county other than that in which the inquirer was assistant prosecutor. By reason of their recent marriage and the distance of travel between her employment and her present residence, she changed jobs and secured employment in the same county as her husband is serving as assistant prosecutor. The law firm for which

she is now employed is apparently engaged in practice in criminal cases in that county. We are of the opinion that the answer to the inquiry is in the affirmative and that the cases coming to his attention in which his wife's employer is involved should be handled in the same manner as all other cases pending in the prosecutor's office. In this Committee's Opinion 170, 93 N.J.L.J. 18 (1970), we held that an attorney whose brother was employed as an investigator by the county prosecutor's office was not precluded from defending a criminal prosecution, and stated:
        In the opinion of the Committee, the performance of all required legal services by the assigned attorney is not improper or unethical by reason of the brother relationship of the assigned attorney and the investigator in the prosecutor's office under the facts presented by this inquiry, when testimony will not be required of the brother.
In Opinion 171, 93 N.J.L.J. 19 (1970), which involved an inquiry by an attorney who sought to practice criminal law when his mother was
employed as secretary to the chief probation office of the county, we held that there were no improprieties under the circumstances therein as outlined. We there stated:
        In the instant case the only possibility of improper advantage is collateral, and unethical conduct of the attorney or corrupt conduct of his mother, respectively, in requesting or delivering confidential information would have to be assumed. Such conduct should not be assumed. We are aware that an attorney should not only avoid all impropriety, but should otherwise avoid the appearance of impropriety. N.J. Advisory Committee on Professional Ethics, Opinion 8, 86 N.J.L.J. 718 (1963). Also, it is realized if the profession is to occupy the position in public esteem which will enable it to be of the greatest usefulness, it must avoid not only all evil but must likewise avoid the appearance of evils ABA Comm. on Professional Ethics and Grievances, Opinion 49 (1931). Thus, the issue emerges as to whether mere employment of a close relative in a governmental department, which maintains confidential records for the benefit of the court, is sufficient to prohibit an attorney from practicing before such court on the basis of improper appearance alone. We are of the opinion that in the absence of actual misconduct, which could be dealt with by established procedure when discovered, sufficient appearance of impropriety does not exist to classify the attorney's proposed practice as unethical.
Our Supreme Court in Higgins v. Advisory Committee on Professional Ethics, 73 N.J. 123, 129 (1977), stated:
        We agree that the 'appearance' of impropriety must be something more than a fanciful possibility. It must have some reasonable basis. However, where as here, a reasonable basis is shown to exist, 'appearance' alone may be sufficient to present an ethical problem even though no actual impropriety exists.
In our opinion, based upon the facts herein presented, a reasonable basis of a showing of impropriety does not exist. In considering inquiries involving attorney and special business or professional relationships in which ethical consideration may be involved, we must do so keeping in mind the comments of Chief Justice Hughes, in In re Gaulkin, 69 N.J. 185, 198 (1976), namely:
        As to the community's perception of the spouse's exercise of that right, emerging concepts of special independence and autonomy in activities, development, interests, rights and responsibilities lead us to appraise our earlier assessment of probable public discernment and sophistication as no longer realistic.

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