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                                        119 N.J.L.J. 632
                                        April 16, 1987


Appointed by the Supreme Court of New Jersey


Conflict of Interest -
Practice in Criminal Court
Relative an Assistant Prosecutor

    We are asked as to the propriety of the father or brother of an assistant prosecutor practicing criminal law in the county in which that assistant prosecutor (daughter-sister) is employed.
    The inquiry states that there are over twenty assistant prosecutors in that county, and that the particular assistant prosecutor has never had any professional or financial relationship with her father or brother.
    A conflict of interest situation is claimed by reason of the familial relation. The three persons concerned live in separate households in reasonably close proximity to one another.
    In our Opinion 541, 114 N.J.L.J. 387 (1984), a father and son had practiced in partnership prior to the appointment of the son as County Prosecutor. We there held that the father, as well as the new firm of which he planned to be "of counsel", may not practice criminal law in the county for which his son and former partner was County Prosecutor. We based that conclusion on the "appearance of impropriety" citing our Opinion 191, 94 N.J.L.J. 33 (1971) where we disapproved criminal practice by the former partners of the full-time prosecutor in the county served by the prosecutor, and our Opinion 201, 94 N.J.L.J. 225 (1971) where we precluded a former partner of a full-time assistant prosecutor (one of fourteen assistant prosecutors) from practicing criminal law in the county of which the former partner was an assistant prosecutor.
    In each of the two opinions cited, the former partners were related in the first degree. In Opinion l91, supra, we added a "Note" referring to the close blood relationship of the persons concerned, including a caveat that the holding should "not be applied beyond those facts."
    The inquiry before us differs from the facts in the three opinions referred to above, in that although there is the relationship in the first degree, the assistant prosecutor has never practiced with either her father or her brother.
    Given the absence of the previous professional relationship, the question arises whether or not the family relationship alone should bar the father or brother from such criminal practice. We think not.
    Although the parent-brother's firm, while of long standing has only recently accepted the opportunity to practice criminal law, we draw no invidious inferences from that circumstance. Attorneys are expected to adhere to RPC 3.5(a) prohibiting use of unlawful means to influence an official, and to RPC 8.4(e) proscribing conduct that implies the ability to improperly influence a government agency or official.

    The familial relationship per se cannot be presumed to create such implications.
    In this inquiry, the assistant prosecutor is one of a small multitude (over twenty). The organization of work in that office must screen that assistant prosecutor from cases in which her family members become concerned.

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