On motion to dismiss indictment.
Barger, J.c.c. (temporarily assigned).
This is a motion to dismiss indictments Nos. 357 and 358, January session, 1957 term, by the defendants Detroit Motors and Morris Rotman. The motion is based on the following two grounds:
(1) In substance, that the circumstances set forth indicate a breach of confidence in the attorney and client relationship existing between the firm of which former Prosecutor H. Russell Morss, Jr., was a member and these defendants, who were represented by such firm on a consultation retainer basis generally, and in particular in a civil action involving the same facts and subject matter as indictment No. 357, and generally on a consultation basis as above indicated as to indictment No. 358, during a period prior to the presentation of the matters to the grand jury and presentation of the indictments to the court. And further, that the circumstances indicate a conflict of interest situation as provided in Canons of Professional Ethics, Canons 6 and 37.
(2) There was no evidence before the grand jury from which such body could determine that a crime had been committed by these defendants or that the State had prima facie evidence connecting these defendants thereto.
The indictments charge the defendants with obtaining money under false pretenses, being violations of N.J.S. 2 A:111-1 and 2 A:111-5. There are other defendants named in the indictments not involved in this motion.
H. Russell Morss, Jr., Esq., was the duly appointed Prosecutor of Union County from on or about February 23, 1953 to and including April 7, 1958, these indictments being presented to the court on the last day of his service as such official; and as a member of the bar he was a member of
the law firm of O'Connor, Morss and Mancini, Esqs., having offices in the City of Elizabeth, upon all of the relevant and material dates herein cited.
As a result of complaints received from various sources by the prosecutor's office during his term of office concerning the practices engaged in by used car dealers, relating to the purchase and sale of such motor vehicles in Union County, Mr. Morss, as such prosecutor, did in or about June 1957 assign one of his assistants, Richard P. Muscatello, Esq., to take charge of all such complaints and of an investigation to be made to secure and compile data, information and evidence relating to such practices for contemplated future presentation thereof at the proper time to the grand jury.
The data, information and evidence assembled as a result of the investigation referred to was presented to the grand jury in the spring of 1958, and as a result these and other indictments were presented to the court on April 7, 1958.
At some date, about March 1958, and prior to the presentation of the evidence to the grand jury, Mr. Morss obtained knowledge that one of the dealers being investigated was the defendant Detroit Motors, and he further learned, about this time, that a member of his firm, and being one of his partners, represented Detroit Motors and perhaps an officer or officers thereof generally, and in particular in a civil cause involving similar facts and the subject matter of indictment No. 357. There is no indication that there was a civil cause pending involving similar facts or the subject matter of indictment No. 358. A partner of the firm of which Mr. Morss was a member had generally represented the defendant Detroit Motors and some of its officers from sometime in the latter part of 1956 or early 1957 to the latter date referred to, on a general retainer basis and in a general manner. When Mr. Morss learned that his firm represented the ...