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In re Advisory Opinion on Professional Ethics No. 361

Decided: July 19, 1978.

IN RE ADVISORY OPINION ON PROFESSIONAL ETHICS NO. 361


On petition for review from The Advisory Committee on Professional Ethics.

For modification -- Chief Justice Hughes, Justices Sullivan, Pashman, Clifford, Schreiber and Handler and Judge Conford. Opposed -- None.

Per Curiam

Petitioners are a number of assistant county prosecutors who moved pursuant to R. 1:19-8 for review of Opinion No. 361 of the Supreme Court's Advisory Committee on Professional Ethics. We granted the petition and heard oral argument. The Attorney General and the County Prosecutors Association were permitted to intervene.

Opinion No. 361 reads as follows:

We have two inquiries as to whether a firm may represent defendants who were investigated or under indictment during the time an associate of the firm was on the staff of the county prosecutor concerned with the matters.

In our opinion it may not. In re Biederman, 63 N.J. 396 (1973); State v. Rizzo, 69 N.J. 28 (1975); and the Opinions of this Committee, Opinion 340, 99 N.J.L.J. 610 (1976); Opinion 276, 96 N.J.L.J. 1461 (1973); and Opinion 207, 94 N.J.L.J. 451 (1971). In these opinions we made it clear that the fact the assistant prosecutor had no connection whatever with the investigation or with the preparation of the case is immaterial.

It is suggested that since the information in some of the prosecutor's files may be fully discoverable by the defense, there is no reason to impose the bar. But the rule of the above cases and opinions is based on the unacceptable appearance of possible impropriety to the general public. And in such matters consent of the public official or agency fails to remove the risk of the appearance of impropriety.

Petitioners contend that the Opinion is overbroad and that assistant county prosecutors should be prevented only from handling matters in which they, in their governmental capacity, had a substantial responsibility. They buttress this contention by reference to Disciplinary Rule 9-101(B) as the underlying guideline applicable to attorneys who have left public and accepted private employment.

Disciplinary Rule 9-101, entitled "Avoiding Even the Appearance of Impropriety," provides in subparagraph B that:

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

The Disciplinary Rule has two basic objectives. First, it is intended to prevent a conflict of interest inherent in an

attorney's having represented one side in an adversarial proceeding and then representing the opponent.*fn1 Second, it is also designed to avoid the appearance of impropriety arising out of an association with one side ...


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