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We cannot let the term pass without commenting on the Supreme Court’s opinion in In the Matter of Yaron Helmer, decided on March 6, 2019. Helmer had been first assistant prosecutor in Cumberland County. He later contacted a former colleague in the Prosecutor’s Office, David Branco, then chief of the major crimes and organized crimes bureau, in an effort to have the office pursue criminal charges against an entity and its principals that had passed bad checks to a client. According to the charges, Helmer orchestrated the prosecution, including preparation and sealing of the indictment and the setting of a bail recommendation that would provide enough cash to serve as restitution to the client upon disposition. Branco assigned the matter to G. Harrison Walters, then a relatively new prosecutor with little experience with such cases, who presented the case to the grand jury solely through the testimony of Helmer. After the indictment was returned, bail in the amount of $150,000 (“full cash”) was set. Ultimately, the prosecutor learned of the scheme and successfully moved to dismiss the indictment and take disciplinary action against Branco and Walters.

On the complaint filed by the Office of Attorney Ethics against Helmer, alleging violations of RPCs 3.4(g) and 8.4 (a) and (d), a special ethics master recommended dismissal of all charges. A majority of the Disciplinary Review Board (DRB) agreed with the dismissal of the charge under RPC 3.4 (g) (presenting “criminal charges to obtain an improper advantage in a civil matter”). However, it concluded that Helmer violated RPC 8.4(a) (violating or attempting to violate, or assisting or inducing another to violate, the RPCs) and RPC 8.4(d) (engaging in “conduct that is prejudicial to the administration of justice”). Three members believed violation of RPC 3.4(g) had been proven, and two members believed that all charges should have been dismissed.

The Supreme Court, in an opinion by the chief justice, concluded there was insufficient evidence to sustain any of the charges by the necessary standard of “clear and convincing” evidence. But it made some comments and voiced concerns about ethical principles which must be read by attorneys who represent clients who are victims of alleged criminal wrongdoing as well as clients who are the subject of criminal complaints and under investigation by the prosecutor and grand jury. They specifically focused on RPC 8.4(d) noting that to “pass constitutional muster,” that RPC must be read narrowly and apply only to “particularly egregious conduct.”

Counsel can certainly make a presentation to the prosecutor on behalf of a client. The prosecutor, who in New Jersey has great discretion in deciding what to present to the grand jury, see e.g., R. 3:25-1(a), has the obligation to be assured of probable cause before presenting the matter for a true bill of indictment. And while hearsay is permitted before the grand jury, it is “highly unusual for the victim’s attorney” to appear as a witness, much less “the sole witness.” Witnesses who participated in the investigation or have firsthand knowledge should be called. There was also a question whether Helmer participated in a conference with the prosecutor after the grand jury presentation and if the rule requiring grand jury secrecy (R.3:6-7) was violated by discussing the matter and vote with him.

While the court found that that the matter “did not follow best practices” and that various aspects of the matter “were troubling in a number of respects,” as noted, it did not find ”clear and convincing evidence that Helmer ‘s conduct met the high threshold” necessary to sustain a violation of RPC 8.4(d). But appropriate concern about professional responsibility and representation of victims and criminals in the prosecutorial setting requires study of the opinion to avoid a similar charge in the future.

Editorial Board members Carl Poplar and Anne Singer recused from this editorial.