Advisory Opinion on Professional Ethics No. 361, In re

• Decision Date: 19 July 1978
• Citation: 77 N.J. 199,390 A.2d 118
• Parties: In re ADVISORY OPINION ON PROFESSIONAL ETHICS NO. 361.
• Court: New Jersey Supreme Court

Page 199

77 N.J. 199

390 A.2d 118

In re ADVISORY OPINION ON PROFESSIONAL ETHICS NO. 361.

Supreme Court of New Jersey.

Argued April 11, 1978.

Decided July 19, 1978.

Sara A. Friedman, Basking Ridge, for petitioners.

Ileana N. Saros, Deputy Atty. Gen., on behalf of amicus curiae Atty. Gen. of N. J. (John J. Degnan, Atty. Gen., attorney; Ileana Saros, David S. Baime, Asst. Atty. Gen., and John DeCicco, Deputy Atty. Gen., of counsel and on the brief).

Daniel J. O'Hern, Red Banks, on behalf of The Advisory Committee on Professional Ethics.

PER CURIAM.

Petitioners are a number of assistant county prosecutors who moved pursuant to R. 1:19-8 for review of Opinion No. 361 of the Supreme Court's Advisory Committee on Professional Ethics. We granted the petition and heard oral argument. The Attorney General and the County Prosecutors Association were permitted to intervene.

Opinion No. 361 reads as follows:

We have two inquiries as to whether a firm may represent defendants who were investigated or under indictment during the time an associate of the firm was on the staff of the county prosecutor concerned with the matters.

In our opinion it may not. In re Biederman, 63 N.J. 396 (307 A.2d 595) (1973); State v. Rizzo, 69 N.J. 28 (350 A.2d 225) (1975); and the Opinions of this Committee, Opinion 340, 99 N.J.L.J. 610 (1976); Opinion 276, 96 N.J.L.J. 1461 (1973); and Opinion 207, 94 N.J.L.J. 451 (1971). In these opinions we made it clear that the fact the assistant prosecutor had no connection whatever with the investigation or with the preparation of the case is immaterial.

It is suggested that since the information in some of the prosecutor's files may be fully discoverable by the defense, there is no reason to impose the bar. But the rule of the above cases and opinions is based on the unacceptable appearance of possible impropriety to the general public. And in such matters consent of the public official or agency fails to remove the risk of the appearance of impropriety.

Petitioners contend that the Opinion is overbroad and that assistant county prosecutors should be prevented only from handling matters in which they, in their governmental capacity, had a substantial responsibility. They buttress this contention by reference to Disciplinary Rule 9-101(B) as the underlying guideline applicable to attorneys who have left public and accepted private employment.

Disciplinary Rule 9-101, entitled "Avoiding Even the Appearance of Impropriety," provides in subparagraph B that:

A lawyer shall not accept private employment in a matter in which he had substantial responsibility while he was a public employee.

The Disciplinary Rule has two basic objectives. First, it is intended to prevent a conflict of interest inherent in an attorney's having represented one side in an adversarial proceeding and then representing the opponent. ¹ Second, it is also designed to avoid the appearance of impropriety arising out of an association with one side and then switching to the other. Both are areas of concern.

Focusing on the conflict of interest element, we find that under the Disciplinary Rule a public employee's "substantial responsibility" with respect to a case would Per se act as a bar to representation. The phrase "substantial responsibility" does not lend itself to a precise definition. However, everyone agrees that, if an assistant county prosecutor had been responsible for a matter while in the prosecutor's office, he should be disqualified from affiliating himself in the same or related matter upon leaving his public employment. A clue to the extent and nature of that responsibility which warrants disqualification is found in the predecessor of the Disciplinary Rule, ABA Canons of Professional Ethics No. 36, which stated in pertinent part:

A lawyer, having once held public office or having been in the public employ, should not after his retirement accept employment in connection with any matter which he has investigated or passed upon while in such office or employ.

We believe that the modification in language from "investigated or passed upon" to "substantial responsibility" has not altered the nature of conflicts of interest. See In re Biederman, 63 N.J. 396, 397, 399-400, 307 A.2d 595 (1973). But cf. ABA Comm. on Ethics and Professional Responsibility, Opinions, No. 342 at 7 (1975).

If the assistant county prosecutor has investigated or participated in an investigation in any manner or to any extent, he should be foreclosed from representing in that or any related matter any person who had been the subject of that investigation or is indicted or tried as a result of that investigation. ABA Opinion 26 ² explained that the intent of Canon 36 was to forbid a lawyer from accepting employment in any matter involving the "same facts as were involved in any specific question which he had previously investigated while in public office or public employ." See also ABA Comm. on Professional Ethics, Opinions, No. 39 (1931) and No. 135 (1935).

Examples of disqualification arising out of representations involving the same parties or the same subject matter are found in the cases. In In re Biederman, 63 N.J. 396, 307 A.2d 595 (1973), we held that an attorney who, while in the Attorney General's office, had instituted and appeared for the State in proceedings to disqualify a company from bidding on construction contracts with the State, was prohibited from representing that company in seeking to be reinstated as a qualified contractor.

In Allied Realty of St. Paul, Inc. v. Exchange Nat'l Bank of Chicago, 283 F.Supp. 464 (D.Minn.1968), aff'd 408 F.2d 1099 (8th Cir. 1969), a special assistant to the U.S. Attorney prosecuted an indictment against three bank employees for criminal activity related to a mortgage transaction on behalf of a bank. The same attorney was disqualified when he sought to represent a receiver of the bank in an action against the mortgagees. A comparable situation existed in Hilo Metals Co., Ltd. v. Learner Co., 258 F.Supp. 23 (D.Haw.1966). An attorney, while in the Department of Justice, had participated in actions against certain companies for Sherman and Clayton Act violations. Thereafter, his attempt to represent another company when it sought treble damages against one of the original defendants was held improper.

Nor need the attorney's participation in the state's investigation be of a substantial nature. Any actual knowledge of facts obtained by virtue of the office will suffice. In State v. Lucarello, 69 N.J. 31, 350 A.2d 226 (1975), aff'g o. b. 135 N.J.Super. 347, 343 A.2d 465 (App.Div.1975), an assistant prosecutor listened to some tape recordings which were related to offenses committed after the assistant prosecutor had vacated his position. The Appellate Division wrote that

(h)aving had a part in the investigation of alleged criminal activity in the Orange Police Department while first assistant prosecutor, Ford is disqualified at any time from representing a defendant charged with attempting to keep from the grand jury evidence of such alleged criminal activity. Public confidence in the bar can demand no less. (135 N.J.Super. at 353, 343 A.2d at 468 (footnote omitted))

In addition to actual knowledge, responsibility, whether exercised or not, over the subject matter is automatically disenabling. Thus, a county prosecutor should not represent anyone in any criminal matter which has been pending, whether in the investigatory state or otherwise, in the office while he was prosecutor. The same rule would normally apply to the first assistant. Furthermore, when there is a sharing of that responsibility with other assistant prosecutors, disqualification of those assistant prosecutors over these matters is in order.

In In re Biederman, supra, we wrote:

The ethical requirement that an attorney who has been a public employee may not, upon retirement, act on behalf of a private client in any matter upon which he was engaged in the public interest is neither new, ambiguous nor difficult to understand. In Formal Opinion 134 of the American Bar Association (1935) it was held that an attorney formerly employed by a state's attorney's office might not, after retiring to private practice, either defend cases that originated while he was connected with that office or defend persons against whom he had aided in procuring indictments. In N.J. Advisory Committee on Professional Ethics, Opinion 207, 99 N.J.L.J. 451 (1971) the same result was reached upon substantially identical facts, even though the attorney had played no part in the investigation and prosecution which had taken place while he was an assistant county prosecutor. Similarly a district attorney who has prosecuted a defendant and secured a conviction may not, after retiring...