Conflict of Interest Assigned Attorney Brother of Prosecutor's Investigator

93 N.J.L.J. 18
January 8, 1970

ADVISORY COMMITTEE ON PROFESSIONAL ETHICS
 
Appointed by the New Jersey Supreme Court
 

OPINION 170

Conflict of Interest
Assigned Attorney
Brother of Prosecutor's Investigator

An attorney assigned to an indigent criminal case by the Public Defender's Office, whose brother is an investigator in the Prosecutor's Office inquires:
May I or any member of the firm with which I am associated, properly represent the defendant when testimony will not be required of my brother?
 
May I or any member of the firm with which I am associated, properly represent the defendant when evidence or testimony will be required of my brother?
 
Drinker, Legal Ethics 62 (1963), states:

From the earliest times it has been the practice, when persons accused of crime are indigent, for the court to appoint counsel to defend them. Lawyers have always regarded the acceptance and performance of such service as one of the obligations incident to their professional status and privileges.
 
Canons of Professional Ethics, Canon 4 provides:

A lawyer assigned as counsel for an indigent prisoner ought not to ask to be accused for any trivial reason, and should always exert his best efforts in his behalf.
 
The Public Defender is a creature of the Legislature, N.J.S.

2A:158A-1 to 22, whose powers include, inter alia N.J.S. 2A:158A-7:

(d) Engage counsel from said trial pools on a case basis as may be necessary for the proper performance of the duties of the office and compensate them for their services; ... .
 
N.J.S. 2A:158A-8:

In selecting deputy public defenders and assistant deputy public defenders or lawyers to be available to represent defendants on a case basis, the Public Defender shall make his selections on a basis calculated to provide the respective defendants with competent counsel in the light of the nature, complexity and other characteristics of the cases, the services to be performed, the status of the matters, and other relevant factors.
 
Provisions for the assignment of counsel for indigent persons contained in the Rules Governing Criminal Practice provide: R. 3:27-1 as to indictable offenses, the right to have the Office of the Public Defender assign representation; and R. 3:27-2 as to non-indictable offenses, the court shall assign representation. A.B.A. Comm. on Professional Ethics, Informal Opinion 957 (1967) in considering the appointment of a part-time U.S. Commissioner to defend indigents charged with crime in state courts, concludes: that you ethically may - and indeed should - in the absence of special circumstances accept your share of appointments by the state court to defend indigents charged with state offenses.
 
Having shown the duty and responsibility of members of the bar to accept the assignment as counsel to represent indigent defendants, and the high sentiment expressed in performing this public service, this Committee finds no impropriety in this attorney accepting such assignment from the Public Defender's Office.
In the opinion of the Committee, the performance of all required legal services by the assigned attorney is not improper or unethical by reason of the brother relationship of the assigned attorney and the investigator in the Prosecutor's Office under the facts presented in this inquiry, when testimony will not be required of the brother.
However, because the legal profession must avoid not only all evil, but must likewise avoid the appearance of evil, we are of the opinion that it would be improper and unethical for the attorney to represent a defendant in a criminal case where his brother is to testify for the prosecution. A.B.A. Comm. on Professional Ethics and Grievances, Opinion 49 (1931). This applies to law partners and associates. N.J. Advisory Committee on Professional Ethics, Opinion 43, 87 N.J.L.J. 256 (1964).

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