Bischoff, Morgan and King.
[152 NJSuper Page 69] Three issues are presented on this interlocutory appeal and cross-appeal. The State seeks to disqualify defendant Morelli's attorney because of his firm's representation of a key prosecution witness and because his firm now employs an attorney who worked in the prosecutor's
office while the investigation which led to this indictment was being conducted. Defendant cross-appeals to compel disclosure of the identity of a police officer who supplied information during the investigation.
Defendants, three policemen of the City of Paterson, were indicted in May of 1976 for misconduct in office. The following month Philip M. Saginario entered his appearance as attorney for defendant Morelli. It developed that Saginario had previously represented key prosecution witness Allen, who was named as an unindicted coconspirator in the indictment. The State moved the court to "determine the propriety of the continued representation of defendant Morelli by his attorney Saginario." By order dated September 29, 1976 the trial judge refused to rule on the ethical propriety of the representation and held Saginario could not be disqualified since defendant was fully aware of the possible prejudice to himself and still wished to retain Saginario. Defendant allegedly waived any appeal rights arising from the conflict.
In October 1976 the State filed a second motion to "determine the propriety of continued representation" on the grounds that an assistant prosecutor who had been employed by the Passaic County Prosecutor's office from December 1973 to October 1976, during which period the grand jury investigation which culminated in the return of this indictment had taken place, had joined Saginario's firm in October 1976. The trial judge again ruled that Saginario would not be prohibited from continuing as defense counsel. Because of these appeals an order granting severance of defendant Morelli was entered and the other two defendants were tried separately.
The State contends that Saginario's employment of a former assistant prosecutor, who served during the investigation leading to Morelli's indictment, is grounds for disqualification. We agree. One of the primary purposes of the Rules of Professional Ethics is to preserve and protect the reputation of lawyers. As the New Jersey Advisory Committee on
Professional Ethics stated in Opinion 6, 86 N.J.L.J. 718 (1963): "To maintain public confidence in the bar, it is necessary not only to avoid actual wrongdoing, but even the appearance of wrongdoing." In 1975 our Supreme Court rendered two decisions which disqualified the attorney for defendant in a criminal case. We find them controlling. Although in State v. Lucarello , 135 N.J. Super. 347 (App. Div. 1975) aff'd o.b. 69 N.J. 31 (1975), the indictments charged defendant with acts occurring after his counsel had left the prosecutor's office, much of the information relevant to the crimes charged had been gathered while his counsel was a first assistant prosecutor. The Appellate Division held: "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." 135 N.J. Super. at 353. In State v. Jaquindo , 138 N.J. Super. 62 (App. Div. 1975) aff'd sub nom. State v. Rizzo , 69 N.J. 28 (1975) defense counsel was disqualified even though the attorney-former assistant prosecutor had not taken part in the investigation leading to indictments, and some of the charges arose after counsel had left the prosecutor's office. The court maintained that because much of the information relevant to the crimes charged was gathered while counsel was an assistant prosecutor, public confidence in the bar demanded no less than his disqualification. The Supreme Court agreed, substantially for the reasons set forth in the majority opinion, and added that even if counsel for defendants had not occupied a conflicting position by reason of his own employment as assistant prosecutor during part of the investigation, his association in the practice of law with another attorney who was involved in the investigation would preclude his representation of defendants under DR 5-105(D). Ibid.
In Opinion 340 of the Advisory Committee on Professional Ethics, 99 N.J.L.J. 610 (1976), a trial judge disqualified an attorney from representing a defendant because an associate in the law firm had been a member of the prosecutor's
staff during the time when the crimes charged were being investigated. The inquirer asked if he could represent an already convicted codefendant on appeal. Citing its Opinion 207, 94 N.J.L.J. 451 (1971), and Opinion 276, 96 N.J.L.J. 1461 (1973), the Advisory Committee concluded that "based on the inacceptable appearance of possible impropriety", such representation was ethically impermissible. The Committee's latest opinion, No. 361, 100 N.J.L.J. 1 (1977) held that a firm may not represent any defendant who was investigated or under indictment during the time an associate of the firm was on the staff of the county prosecutor. Whether the assistant prosecutor had any connection with the investigation or the preparation of the case was immaterial, since there would still be the unacceptable appearance of possible impropriety to the general public.
We accept the rationale of Opinion 361 and hold attorney Saginario is required to withdraw in this case. Our courts have been sensitive to situations in which a defense attorney must be disqualified due to the "risk of the unacceptable appearance of possible impropriety." The appearance of impropriety here is heightened by allegations of an additional conflict of interest, but if no such conflict were alleged, attorney Saginario would still be disqualified because a former prosecutor has joined his firm. Since the basis of this holding is the possible appearance of impropriety, Saginario would continue to be disqualified even if the former prosecutor should leave his office. This conclusion is necessitated by the same rationale which caused the Advisory Committee on Professional Ethics to recommend withdrawal in Opinion 276, supra:
We find it difficult to believe that the public would be able to understand the distinction here sought to be made, particularly in view of the time frame involved. The public would, we think, merely be aware that a criminal investigation within the jurisdiction of the inquirer's former office was conducted while the inquirer was a part of ...