Does leaving the Attorney General's office or another state agency bar a lawyer or law clerk from later working for a firm that is in litigation against the State?
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This page answers the general question as of 1976. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
The Committee responded to inquiries from law firms and from a part-time law student researcher in the Attorney General's office, all prompted by the firms' reading of the Committee's Opinion 313. Many leading firms represented clients in litigation against the State (the inquiries pointed to an antitrust suit in which the State was plaintiff against more than 200 defendants), and they feared that Opinion 313 barred them from hiring anyone who had worked in the Attorney General's office.
The Committee concluded that Opinion 313 did not compel that result. It read Opinion 313 narrowly, on its own facts: there, the inquirer had performed extensive services on a matter for the plaintiff's firm and then moved to the firm defending the same action, so the appearance of conflict could not be eliminated regardless of screening. By contrast, the mere fact that a law student does research for a state agency, or that a lawyer is employed there and then seeks private work with a firm adverse to the State, does not per se preclude the new employment.
The opinion identified the controlling factor as whether the prospective employee had any "substantial responsibility" for the adversarial litigation while with the public employer. If so, the person may not accept the employment, or, if hired, the new employer must withdraw from the litigation for which that employee had such responsibility. The Committee grounded the standard in DR 9-101(B), the rule against accepting private employment in a matter in which the lawyer had substantial responsibility as a public employee.
Currency note
This opinion was issued in 1976, 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. The successive government-and-private-employment rule then in DR 9-101(B) is now in RPC 1.11. 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 Treat this page as historical context, not current guidance.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: Does working in the Attorney General's office bar a lawyer from later joining a firm that sues the State?
A: Not by itself. The opinion concluded that public employment alone does not preclude the later private job; the question is whether the lawyer had substantial responsibility for the specific litigation.
Q: What is the test for when the move is barred?
A: Whether the prospective employee had "substantial responsibility" for the adversarial litigation while in public employment, the standard the opinion drew from DR 9-101(B).
Q: If a lawyer did have substantial responsibility for a case against the State, what happens?
A: The opinion concluded the lawyer may not accept the employment, or, if hired, the new firm must withdraw from that particular litigation.
Q: Did the opinion extend to law students and non-admitted clerks?
A: The Committee noted that law students and non-admitted clerks are outside its jurisdiction under R. 1:19-2, but it addressed the subject anyway to give guidance on their future employment.
Background and rules framework
The opinion applied DR 9-101(B), which barred a lawyer from accepting private employment in a matter in which the lawyer had substantial responsibility while a public employee, and read it against the conflict and appearance-of-impropriety concerns animating its Opinion 313. In current New Jersey terms, the successive-employment question is governed by RPC 1.11 (former and current government officers and employees), with imputation and screening concepts now spelled out in the rule.
Citations and references
Rules of Professional Conduct:
- DR 9-101(B) (accepting private employment in a matter for which the lawyer had substantial responsibility as a public employee), as in effect 1976; now MR 1.11 / NJ RPC 1.11
Other opinions cited:
- NJ ACPE Opinion 313, 98 N.J.L.J. 753 (1975)
See also
- NJ ACPE Op. 614: Successive Government and Private Employment by a Deputy Attorney General
- NJ ACPE Op. 339: Former Deputy Attorney General's Firm Opposing the State
- NJ ACPE Op. 569: Former Deputy Attorney General Representing a Licensee Before a Board
- NJ ACPE Op. 504: Former Municipal Workers' Comp Defense Counsel Suing the Municipality
Source
- Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp329-1.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.
Full opinion text unavailable from the official source; see the linked source above for the complete text.
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