May a lawyer who formerly served a public body represent private clients before that same body, and should a special rule bar all such appearances?

Plain-English summary

The Supreme Court referred to the Committee a series of newspaper articles alleging wrongdoing by public officials, including two lawyers who were former municipal attorneys and had become active advocates for private clients before boards in the same municipality. The Court asked the Committee to consider the matter and recommend whether a new rule was needed.

The Committee first stated the governing standard: an attorney's appearance on behalf of private clients before a public body that formerly employed him is not prohibited by the Disciplinary Rules or the court rules, except that under DR 9-101(B) he may not accept private employment in a matter in which he had substantial responsibility as a public employee, and under DR 9-101(C) he may not state or imply that he can improperly influence a tribunal or public official. The Committee also invoked Canon 9 of the Code of Professional Responsibility, that a lawyer should avoid even the appearance of professional impropriety.

The opinion then weighed whether a specific rule barring all such appearances should be adopted. It catalogued the practical difficulties: such a rule would have to reach every former lawyer-member of every public office however created, would have to fix a duration unrelated to length of service, and would have to decide whether partners and associates were also barred. The Committee reviewed the history of the Canons and the 1969 Code of Professional Responsibility (adopted in New Jersey in 1971), noting that neither the ABA nor the New Jersey study committees had recommended a blanket prohibition, and that the New Jersey Conflicts of Interest Law (N.J.S.A. 52:13D-12 et seq.) had dropped a proposed two-year bar before taking effect, retaining only a restriction (N.J.S.A. 52:13D-17) substantially similar to DR 9-101(B).

The Committee concluded that the ethical standards established by over a century of use and interpretation of the Canons and the Code were adequate to discipline a lawyer charged with unethical use of a former public position, and that there was no need to enlarge the present rules.

Currency note

This opinion was issued in 1974, before New Jersey's adoption of the 2004 revisions to the Rules of Professional Conduct, and predates the 1984 replacement of the Disciplinary Rules by the RPCs. It was decided under the Code of Professional Responsibility (DR 9-101, Canon 9), which New Jersey adopted in 1971. Successor-employment conflicts for former government lawyers are now treated under RPC 1.11, and the improper-influence prohibition under RPC 8.4(e). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Could a former municipal attorney appear before that municipality's boards for private clients?

A: Under this opinion, yes, except in a matter in which he had substantial responsibility while in public employment; the general appearance was not prohibited by the Disciplinary Rules or court rules.

Q: What specific conduct did the opinion say was off-limits?

A: Accepting private employment in a matter in which the lawyer had substantial responsibility as a public employee (DR 9-101(B)), and stating or implying an ability to improperly influence a tribunal or public official (DR 9-101(C)).

Q: Did the Committee recommend a new rule barring all such appearances?

A: No. It concluded the existing standards were adequate and that there was no need to enlarge the present rules, citing the difficulty of defining the scope and duration of any blanket prohibition.

Background and rules framework

The opinion applied DR 9-101(B) and DR 9-101(C) of the Code of Professional Responsibility and the appearance-of-impropriety principle of Canon 9, against the backdrop of the New Jersey Conflicts of Interest Law (N.J.S.A. 52:13D-12 et seq.). In current New Jersey terms, the former-government-lawyer conflict is governed by RPC 1.11, and the improper-influence prohibition by RPC 8.4(e).

Citations and references

Rules of Professional Conduct:

• DR 9-101(B) (private employment in a matter handled as a public employee), as in effect 1974; now MR 1.11 / NJ RPC 1.11
• DR 9-101(C) and Canon 9 (improper influence; appearance of impropriety), as in effect 1974; the improper-influence bar is now MR 8.4(e) / NJ RPC 8.4(e)

Statutes:

• N.J.S.A. 52:13D-12 et seq. (New Jersey Conflicts of Interest Law)
• N.J.S.A. 52:13D-17 (restriction on former state officers and employees)

Other opinions cited:

• ABA Committee on Professional Ethics and Grievances, numerous opinions on appearance of impropriety

See also

• NJ ACPE Op. 297: A Development Corporation's Counsel Who is a Prosecutor's Partner
• NJ ACPE Op. 318: A Freeholder's Husband as Assistant County Counsel
• NJ ACPE Op. 351: A Municipal Attorney Representing a Police Officer

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp294-1.html
• Issuing authority: New Jersey Supreme Court Advisory Committee on Professional Ethics, via the NJ Courts Supreme Court Committees page

Original opinion text

Reproduced from a full-text mirror of the official opinion for research purposes. The linked official source controls.

97 N.J.L.J. 993, December 19, 1974

OPINION 294

Conflict of Interest Former Attorney of Public Body Representing Private Clients

Last year the Supreme Court sent to our Committee a series of newspaper articles dealing with alleged wrongdoing by public officials, including attorneys, in municipal government in a certain New Jersey municipality. The Court suggested that we consider the matter and make a recommendation.

There were six articles, published on consecutive days, pointing the finger of suspicion at various public officeholders in the municipality. One of the series was entitled "How Political Lawyers Develop Winning Ways" and zeroed in on two lawyers who were former municipal attorneys, both of whom the article said "have become active advocates for private clients" before boards in the municipality and alleged that as these attorneys "brought more and more applications before local boards, the suspicion grew stronger . . ., that political pull was influencing decisions." It is this article dealing with the two attorneys that concerns the Court and this Committee.

The appearance of an attorney on behalf of private clients before a public body or agency by which he was formerly employed is not prohibited by the Disciplinary Rules of the Code of Professional Responsibility or by the Rules Governing the Courts of the State of New Jersey. Such representation, however, is not permissible in a matter in which the attorney had substantial responsibility while he was in the employ of the public body or agency and he shall not state or imply that he is able to influence improperly such public body or agency. DR 9-101(B) and DR 9-101(C), which read as follows:

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

(C) A lawyer shall not state or imply that he is able to influence improperly or upon irrelevant grounds any tribunal, legislative body, or public official.

Additionally, numerous opinions of the Committee on Professional Ethics of the American Bar Association and of this Committee as well as other state ethics committees have repeatedly admonished lawyers to avoid even the appearance of professional impropriety. And Canon 9 of the Code of Professional Responsibility adopted by the American Bar Association provides that:

A Lawyer Should Avoid Even the Appearance of Professional Impropriety.

Are the foregoing Disciplinary Rules, opinions and Canon 9 adequate tools to define any unethical conduct by attorneys in representing private clients before public bodies or agencies by whom they were formerly employed or should a rule of court or disciplinary rule be adopted specifically prohibiting such representation? Let us first consider a specific rule to do this. Such a rule must, of necessity, include a former lawyer-member of a public body or agency. It must also encompass every public office, position or employment regardless of how created. How long should the prohibition continue? Should the length of time be different for an attorney whose public employment lasted, say, twenty years or more, from that of an attorney whose employment was one year or less or should the time be the same regardless of the length of employment? Should a lawyer-governor be barred from representing private clients before all state boards and agencies after his term of office ends? Should the Attorney General and all Deputy Attorneys General be similarly barred? And to what extent should county prosecutors, county counsels, mayors, members of governing bodies, members of state boards, members of local boards, etc., who are lawyers be barred by such a rule? Would all partners and associates of such an attorney be barred? To pose the foregoing questions clearly demonstrates the difficulties encountered in adopting such a rule.

We must now survey the adequacy of existing ethical standards to cope with the problem. The original 32 Canons of Professional Ethics were adopted by the American Bar Association in 1908. They were based principally on the Code of Ethics adopted by the Alabama State Bar Association in 1887 which, in turn, had been borrowed largely from the lectures of Judge George Sharswood, published in 1854 under the title of "Professional Ethics." These Canons which were adopted in the State of New Jersey and other states, and the opinions interpreting them never prohibited a lawyer from appearing before a public body or agency that had formerly employed him, except in matters in which he had had substantial responsibility during his public employment. The Code of Professional Responsibility was adopted by the American Bar Association on August 12, 1969, replacing the former Canons of Professional Ethics after an exhaustive study by a special committee appointed on August 14, 1964, of the House of Delegates of the American Bar Association. The study of the committee led to the conclusion that the need for a change in the statements of professional responsibility of lawyers could not be met by merely amending the Canons but that a new Code of Professional Responsibility was the answer. The Supreme Court of the State of New Jersey adopted the Code of Professional Responsibility in 1971 after receiving a report of a special committee appointed by it to review the Code. Neither the committee of the American Bar Association that recommended the Code nor the committee of the Supreme Court of New Jersey in making its report suggested that a lawyer should be prohibited in all matters from representing private clients before a public body or agency that formerly employed him. And the American Bar Association House of Delegates, at its February 1974 mid-year meeting, approved several amendments to the Code of Professional Responsibility which the Supreme Court of New Jersey recently referred to a committee to advise the Court with respect thereto and none of the amendments dealt with the conduct of an attorney after leaving public employment. It is also significant that the New Jersey Conflicts of Interest Law (N.J.S.A. 52:13D-12 et seq.) enacted in 1971, effective January 11, 1972, contained a provision prohibiting state officers and employees within two years after termination of employment from representing, appearing for or negotiating on behalf of anyone other than the State or the State agency by which the officer or employee was formerly employed but the provision was deleted by an amendment adopted before the law became effective. (See L. 1971, c. 359, 3). The statute, on its effective date and at the present time, contains a provision prohibiting such representation only in matters that state officers or employees "shall have made any investigation, rendered any ruling, given any opinion or been otherwise substantially and directly involved at any time during the course of his office or employment." (N.J.S.A. 52:13D-17) This is substantially similar to DR 9-101(B), supra.

We are of the opinion that the ethical standards relating to the propriety of an attorney representing private clients before a public body or agency that formerly employed him or of which he was formerly a member, established by over a century of use and interpretation of the Canons of Professional Ethics and the Code of Professional Responsibility, are adequate to discipline an attorney charged with unethical use of his former public position. Accordingly, this Committee is of the further opinion that there is no need to enlarge the present rules which prohibit unethical use of a former public office or position.