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(See R.P.C. 1.1 et seq., and R. 1:14.)
I. FORMER PROSECUTOR OR COUNTY OFFICIAL - CONFLICT OF INTEREST
Former assistant prosecutor retained to represent
defendants who had been indicted on charges growing
out of a lengthy investigation conducted by county
prosecutor’s office during time attorney was employed
there should not have represented defendants.
Furthermore, he is precluded from representing
defendants by virtue of his association in the practice of
law with another attorney who had been employed in the
county prosecutor’s office during the investigation of
defendants. State v. Rizzo, 69 N.J. 28 (1975).
In State v. Morelli, 152 N.J. Super. 67 (App. Div.
1977) 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. In such cases, defense counsel is to be
disqualified even though the attorney-former assistant
prosecutor did not take part in the investigation leading
to the defendant’s indictment.
Higgins v. Advisory Committee of N.J., 73 N.J. 123
(1977) held that an attorney who is a member of the
board of chosen freeholders may not ethically represent a
criminal defendant indicted for a crime in the county in
which the freeholder-attorney holds office.
In Ross v. Canino, 93 N.J. 402 (1983), a law firm, in
which a former Attorney General was a partner, could
represent plaintiffs in a civil suit, although one or more
divisions in the Department of Law and Public Safety,
during the Attorney General’s term, investigated matters
relating to the suit. However, the former Attorney
General could not participate in the case. See also Knight
v. Margate, 86 N.J. 374 (1981).
In Re Advisory Opinion on Professional Ethics No. 361,
77 N.J. 199 (1978), held that an assistant prosecutor,
upon leaving public office, should refrain from handling
any matter or representing any client based on guidelines
set out by the court. If an assistant county prosecutor has
investigated or participated in an investigation in any
manner, he should be foreclosed from representing in
that or any related matter any person who was a subject
of that investigation or was indicted or tried as a result
thereof. Moreover, a county prosecutor should not
represent anyone in a criminal matter which has been
pending, whether in the investigatory stage or otherwise,
in the office while he was a prosecutor. Finally, even if not
otherwise disqualified, an assistant county prosecutor
should not appear in any criminal matter in any capacity
against the State and County in which he served for a
period of six months from the date of termination of his
public employment.See also Matter of Petition for Review of Opinion No.
569 , 103 N.J. 325 (1986) (same six-month period
imposed on former deputy attorneys general respecting
practice before agencies they represented).State v. Medina, 201 N.J. Super. 565 (App. Div.
1985), certif. denied, 102 N.J. 298 (1985), upheld the
disqualification of a former county assistant prosecutor
from representing a defendant on narcotics charges
involving cocaine, of which he acquired knowledge while
an assistant prosecutor. The attorney, while with the
prosecutor’s office, had not participated in the
investigation of the defendant but had knowledge of it
and had been present while the cocaine seized from
defendant was field tested. The attorney was aware that
the test indicated that the substance was a narcotic and
at some point in time understood the significance of that
knowledge, although not necessarily at the time of the
test. Moreover, the attorney had also represented one of
the police officers connected to the investigation and
arrest of the defendant on an unrelated criminal matter.
The Court concluded that the aforementioned clearly
had the appearance of impropriety and warranted
disqualification of the attorney.II. DEFENSE COUNSEL - CONFLICT OF INTEREST
A defense counsel’s representation, in an unrelated
matter and with the defendant’s knowledge, of two
codefendants, at whose trial before the same judge the
attorney made disparaging remarks about the defendant,
did not result in a conflict of interest that rendered the
guilty plea, negotiated by the defense attorney’s partner,
involuntary. Dukes v. Warden, 406 U.S. 250, 92 S.Ct.
1551 (1972), reh. denied 407 U.S. 934 (1972).In Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct.
1173 (1978), petitioners, codefendants at trial, made
timely motions at the state criminal trial for appointment
of separate counsel based on the representations of their
appointed public defender that, because of confidential
information received from the codefendant, the interests
of his clients conflicted, and he could not therefore