State v. Lucarello

• Decision Date: 12 June 1975
• Citation: 343 A.2d 465,135 N.J.Super. 347
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Quincy H. LUCARELLO, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 347

135 N.J.Super. 347

343 A.2d 465

STATE of New Jersey, Plaintiff-Respondent, v. Quincy H. LUCARELLO, Defendant-Appellant.

Superior Court of New Jersey,

Appellate Division.

Argued May 27, 1975.

Decided June 12, 1975.

Thomas P. Ford, Jr., Nutley, for defendant-appellant (Citrino, Balsam & Ford, Nutley, attorneys).

Steven E. Rosenfeld, Asst. Prosecutor, for plaintiff-respondent (Joseph P. Lordi, Essex County Prosecutor, attorney).

Before Judges MICHELS, MORGAN and MILMED.

PER CURIAM.

The Law Division, by order, relieved Thomas P. Ford, Jr., as counsel for defendant Quincy H. Lucarello, Commissioner of Public Safety and Director of the Police and Fire Departments of the City of Orange, 'because of conflict of interest due to his former position as an Assistant Prosecutor of Essex County and First Assistant Prosecutor of Essex County during the period between September of 1959 and September of 1971.' Defendant applied for leave to appeal from that order. We granted such leave and accelerated the appeal. See R. 2:5--6, R. 2:9--2.

The pertinent facts may be briefly summarized. Ford joined the Essex County Prosecutor's Office as an assistant prosecutor on September 14, 1959. On May 2, 1966 he was appointed first assistant prosecutor of the county and served in that capacity until September 3, 1971 when he became a partner in the law firm of Citrino, Carella, Balsam & Ford, now Citrino, Balsam & Ford. In August 1965 an investigation was undertaken by the Essex County Prosecutor's Office regarding possible criminal activity within the Police Department of the City of Orange. The investigation is still continuing.

According to the prosecutor's office a primary source of information throughout the investigation has been Rocco Zarillo, Director of Information and Complaints for the City of Orange, who continuously reported regarding police improprieties in Orange. It is his testimony which forms in substantial part the basis for the present indictments against defendant charging defendant with (1) false swearing before the Essex County grand jury on December 3, 6 and 13, 1974 (Indictment No. 1994--74); (2) conspiracy to obstruct justice from on or about May 28, 1974 through on or about July 9, 1974, obstructing justice and malfeasance in office (Indictment No. 1995--74), and (3) conspiracy, between on or about September 26, 1974 through on or about March 24, 1975, to obstruct justice by endeavoring to persuade Rocco Zarillo to testify falsely before the grand jury, obstructing justice and attempted subornation of false swearing (Indictment No. 1996--74).

At the hearing in the Law Division the trial judge asked counsel whether he recalled, during the time he was assistant prosecutor or first assistant prosecutor, interrogating Rocco Zarillo. Ford answered: 'I may have talked to him.' At the hearing assistant prosecutors informed the court that Rocco Zarillo had played certain tape recordings for the prosecutor's office; that Ford was present at the interrogation of Zarillo during the playing of the recordings; that one recording, made in 1969, called the 'Split the Pie' tape recording, referred 'to certain Orange police officers allegedly on the pad to certain gamblers in the City of Orange'; that this tape recording was played for Ford when he was employed in the prosecutor's office, and that this recording 'is a part' of the indictment for false swearing returned against the defendant Quincy H. Lucarello. This latter reference obviously is to that part of one of the indictments which alleges that defendant testified falsely before the grand jury when he denied, among other things, that he knew of the tape or that he discussed its contents with Rocco Zarillo, or that he knew that any potential grand jury witnesses intended to testify in an untruthful manner about the tape. When asked by the trial judge whether he recalled listening to tapes in 1970, as the prosecutor alleged, Ford answered: 'I don't, but I will, for the purposes of this record, I will say that there may have been tapes I heard.'

It is clear from the record before us that two of the pending indictments (Nos. 1996--74 and 1994--74) against defendant, in substantial part charge him with (among other things) attempting to keep from the grand jury evidence of alleged criminality involving the Orange Police Department uncovered by the prosecutor's office during Ford's tenure there in an investigation in which he took part as first assistant prosecutor. ¹ Ford's continued representation of defendant would, accordingly, be in direct violation of Disciplinary Rule 9--101(B), which reads as follows:

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

Cf. N.J.S.A. 52:13D--17.

As pointed out by the court in In re Biederman, 63 N.J. 396, 307 A.2d 595 (1973):

The ethical requirement that an attorney who had 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 (Sic ²) 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. (at 399--400, 307 a.2d at 597)

In the N.J. Advisory Committee on Professional Ethics, Opinion 207, 94 N.J.L.J. 451 (1971), reference was made to the very similarly, although less precisely, phrased predecessor rule to DR9--101(B) which appeared as part of former Canon 36 of the Canons of Professional Ethics, and which provided that:

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 officer or employ.

The Advisory Committee on Professional Ethics, in Opinion No. 207, quotes the following from Opinion 134 (1935) of the Committee on Professional Ethics of the American Bar Association:

A lawyer retiring from public employ cannot utilize or seem to utilize the fruits of the former professional relationships in subsequent private practice involving a matter investigated or passed upon either by himself or others of the public legal staff during the time he was identified with it.

And, N.J. Advisory Committee on Professional Ethics, Opinion 111, 90 N.J.L.J. 361 (1967), points out in part that:

The American Bar Association, Committee on Professional Ethics, Opinion 134 (1935), interprets Canon 36 and extends the prohibition (therein) to any matter which originated in the office with which the attorney was connected where he was in a position of confidence and actually knew or had the opportunity to know facts because of his position in said office.

We find no merit in Ford's suggestion that there is no conflict of interest or appearance of a conflict in as much as the dates of the specific charges in the pending indictments are long after he left the prosecutor's office. While the indictments against defendant charge him with acts occurring after Ford left the prosecutor's office, much of the information relevant to the crimes charged in two of the indictments was gathered while Ford was first assistant prosecutor. The crimes charged in these two indictments involve, in substantial part, alleged mainpulation or cover-up of the previously gathered evidence. Having 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. ³ Public confidence in the bar can demand no less.

Defendant, of course, is entitled to retain Qualified counsel of his own choice. He has no right, however, to demand to be represented by an attorney Disqualified because of an ethical requirement. And, we point out, his remaining choice is not a narrow one. There are many well qualified attorneys who are not affected by the disqualification which is the subject matter of this appeal.

The order of the Law Division under review is affirmed.

MORGAN, J.A.D. (dissenting).

I dissent from the opinion of my colleagues because of one essential and uncontroverted fact. The offenses with which Lucarello is charged with committing occurred approximately three years after Ford resigned from his position as Essex County Assistant Prosecutor. Ford could not therefore have been with the prosecutor's office at the time these offenses were the subject of the investigation because they had not yet occurred. One can only investigate a past event, not a future one.

Ford was retained by Lucarello to defend against charges contained in three multi-count indictments returned in April 1975. The first indictment, No. 1996--74, charges Lucarello with having attempted, between September 26, 1974 and March 24, 1975, to suborn perjured testimony by one Rocco Zarillo in connection with a criminal investigation 'then pending' before a grand jury of Essex County, and conspiring with others, named in the same indictment, to suborn Zarillo's perjured testimony before the grand jury during that same period of time. The essential facts constituting the offenses charged in separate counts of this indictment are alleged therein as being that defendant and the codefendants, during the several months period referred to...