Michels, Morgan and Milmed. Morgan, J.A.D. (dissenting).
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.*fn1 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.
As pointed out by the court in In re Biederman, 63 ...