109 N.J.L.J. 377
May 6, 1982
Prosecutor's Staff Personally
Represented by Criminal Practitioners
A county prosecutor inquires whether assistant prosecutors,
county investigators and county detectives employed by his office
can properly be represented in their personal legal affairs by
attorneys who also maintain active criminal defense practices in
the same county. Stating that "it is impossible to detail the areas
of actual or potential conflict" with respect to all members of his
staff and their respective situations, the inquirer asks us to
consider three specific instances in which staff members have
retained criminal practitioners to represent them privately. Two
involve matrimonial actions to which an assistant prosecutor and a
county detective, respectively, are parties, and the third concerns
a property damage suit in which an assistant prosecutor's vehicle
was struck. It is our opinion that under the facts presented, all
three representations are improper and should be withdrawn.
We start with the premise that because of both the appearance
of impropriety (DR 9-101) and the potential for conflict under DR 5-105 (B), a prosecutor himself should not seek personal representation by an attorney who actively practices criminal defense law in the same county. As we said in our Opinion 261, 96 N.J.L.J. 1150 (1973):
[t]he close personal relationship of [defense] counsel to a prosecutor, for whatever purpose, necessarily invites in the public mind the appearance of impropriety. There is, also, a question of whether or not the attorney's professional judgment on behalf of either client, prosecutor or accused, may be adversely affected by his representation of the other, DR 5-105(B). In our opinion, counsel to a prosecutor should refrain from representing accused in the county while he represents the prosecutor of that county.
We think this view applies with equal force to those members of a prosecutor's staff who, no less than he, are active participants in a criminal justice system of which defense counsel are indispensable, but necessarily adversarial, components. Accordingly, we hold that in fact situations such as those presented here members of the local criminal defense bar should not undertake private legal representation of assistant prosecutors, county investigators or county detectives.