Can a municipal prosecutor who was excused from a disorderly-persons case involving a client and the client's wife later prepare a separation agreement for that client?

Plain-English summary

Because of a previous attorney-client relationship, an attorney serving as municipal prosecutor sought to be excused as prosecutor in a disorderly-persons case involving his client and the client's wife, and the municipal court judge granted the request. The question presented was whether the attorney could then represent the client in preparing a separation agreement with the wife's attorney, at that attorney's instigation.

The Committee concluded that the representation now sought did not appear to violate the Canons of Professional Ethics. It noted that the inquirer appeared to have had no personal connection with the investigation of the disorderly-persons case or its prosecution, and that he had been excused from that matter.

Currency note

This opinion was issued in December 1963, before New Jersey's September 13, 1971 adoption of the Disciplinary Rules (Code of Professional Responsibility), and well before the 1984 Rules of Professional Conduct and all later revisions. It applied the conflict-of-interest principles of the former Canons of Professional Ethics. Conflicts involving current clients and the duties of former and current government lawyers are now analyzed under RPC 1.7 and RPC 1.11. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.

Common questions

Q: Could the prosecutor prepare his client's separation agreement after being excused from the related disorderly-persons case?

A: Yes. The Committee found the later representation did not appear to violate the Canons, because he had no personal connection with the case's investigation or prosecution and had been excused.

Q: What facts made the difference for the Committee?

A: The Committee emphasized that the prosecutor had no personal involvement in investigating or prosecuting the disorderly-persons matter and had already been relieved of it.

Background and rules framework

The opinion applied the conflict-of-interest principles of the former Canons of Professional Ethics to a part-time municipal prosecutor's private practice. Such questions are now analyzed under RPC 1.7 (conflict of interest, current clients) and RPC 1.11 (special conflicts for former and current government officers and employees).

Citations and references

Rules of Professional Conduct (as in effect at the time):

• Former Canons of Professional Ethics (conflict of interest)

See also

• NJ ACPE Op. 104: Municipal Prosecutor Defending a Municipal Employee
• NJ ACPE Op. 140: Municipal Prosecutor Defending a Police Officer
• NJ ACPE Op. 207: Former Assistant Prosecutor Defending the Indicted

Source

• Landing page: https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp8-1.html

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

86 N.J.L.J. 718
December 19, 1963

OPINION 8

Conflict of Interest
Municipal Prosecutors

By virtue of previous client-attorney relationship, attorney sought to be excused as municipal prosecutor in a disorderly case involving client and his wife. The request was granted by the municipal court judge. The question now presented is whether it is proper for the attorney to represent the client with regard to the preparation of a separation agreement with the wife's attorney, at the instigation of the latter.

The inquirer appears to have had no personal connection with the investigations of the disorderly case, or its prosecution and, in the opinion of the Committee, it does not appear that the representation now sought in the inquiry is in violation of the Canons of Professional Ethics.