107 N.J.L.J. 329
April 16, 1981
Conflict of Interests
Assistant County Counsel's Associate
Conducting Appeal from Conviction in County
This Committee has received the following inquiry:
May an attorney who is an associate of an attorney who will soon be appointed assistant county counsel continue, once the appointment is confirmed, to represent a client who has been convicted of an offense in Superior Court, Law Division, in the same county?
The attorney has already filed an appeal and the Attorney General has been substituted for the county prosecutor as attorney for the State. The inquirer suggests that there is no actual conflict since the county will not be involved in the appeal. We disagree. In our Opinion 106, 90 N.J.L.J. 97 (1967), we held that a county counsel may not represent a defendant indicted for a crime in the county in which the counsel serves. In our Opinion 268, 96 N.J.L.J. 1325 (1973), we extended and clarified our earlier ruling, holding that a county counsel may not even represent a defendant charged with a non-indictable offense in a municipal court of the same county. Of course, where the county counsel is disqualified, any partner or associate of his is also disqualified from representing such defendants. DR 5-105(D)7 Reardon v. Marlayne, Inc., 83 N.J. 460, 470 (1980).
While the inquirer concedes that he could not continue to represent such a defendant within the county, he does not see any conflict in representing a defendant on an appeal from the county. The fallacy in this thinking is in misperceiving the role of the county counsel. "The county attorney represents all of the people of the county in matters affecting it." Opinion 106, supra. It cannot be disputed that prosecution of offenses alleged to have taken place within a county affects the people of the county. Even in the situation posed by this inquiry, where the county prosecutor is no longer directly involved in proceedings on the appellate level, the interest of the people of the county in the prosecution continues.
It is the opinion of this Committee that there is a direct conflict of interest in an attorney's acting as county counsel or assistant county counsel while at the same time resisting the pros ecution of persons alleged to have committed offenses within the same county, and that this conflict extends to proceedings on any judicial level growing out of the original charges. For the fore going reasons it is our view that an associate of an assistant county counsel may not prosecute a criminal appeal arising in the county in which the assistant county counsel serves.