Michels, Morgan and Milmed. Morgan, J.A.D. (concurring and dissenting in part).
[138 NJSuper Page 63] The Law Division, by separate orders, relieved Allen C. Marra as counsel for the defendants Gaetano Jaquindo, Salvatore Rizzo and Felix Jaquindo "because of conflict of interest due to his former position as an Assistant Prosecutor of Essex County during the period between September of 1970 to April, 1973." Defendants applied for
leave to appeal from the orders. We granted such leave and accelerated the appeals. See R. 2:5-6, R. 2:9-2.
The pertinent facts may be briefly summarized. Marra joined the Essex County Prosecutor's Office as an assistant prosecutor on September 28, 1970. He served in that capacity until April 23, 1973. 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 (1) pending indictments against defendants, Gaetano Jaquindo, Captain in the Orange Police Department, and Salvatore Rizzo, Sergeant in the Police Department, charging them with (a) 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 (b) 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); (2) additional pending indictments against defendant Gaetano Jaquindo charging him with (a) conspiracy, between on or about January 1, 1971 through on or about February 1, 1971, to commit extortion, extortion and malfeasance in office (Indictment No. 2010-74); and (b) conspiracy, between on or about October 27, 1970 through on or about November 3, 1970, to commit extortion, extortion and malfeasance in office (Indictment No. 2011-74), and (3) an additional pending indictment against defendant Salvatore Rizzo charging him with malfeasance in office (Indictment
No. 2003-74). There is a separate indictment against defendant Felix Jaquindo charging him with voting fraud on or about May 14, 1974 (Indictment No. 1992-74). At the hearing in the Law Division in a related matter,*fn1 assistant prosecutors informed the court that Rocco Zarillo had played certain tape recordings for the prosecutor's office; that one of Marra's present associates in the practice of law, Thomas P. Ford, Jr., then first assistant prosecutor, 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," and that this tape recording was played for Ford in 1970.
It is clear from the record before us that one of the pending indictments (No. 1996-74) against defendants Jaquindo and Rizzo, charges them, in substantial part, 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 Marra's and Ford's tenure there in an investigation in which Ford took part as first assistant prosecutor.*fn2 Mr. Marra's continued representation of these defendants as well as his associate's (Ford's) continued representation of codefendant Lucarello 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.
As pointed out by the court in In re Biederman , 63 ...