Can a law firm keep handling a case against the State after hiring the former deputy attorney general who had substantial responsibility for that same matter, if he works in a separate office?

Plain-English summary

The inquirer's firm represented a defendant in a condemnation action begun by a municipality; because the pleadings raised whether some or all of the land was riparian and owned by the State, the State was joined and represented by a deputy attorney general. That deputy attorney general later became an employee of the inquirer's firm, working in an office in another county with, it was alleged, virtually no exchange of cases with the office handling the litigation. The inquiry conceded the employee had substantial responsibility for the matter while a deputy attorney general but said he had no knowledge of the critical facts or proofs the State would use, and argued the firm's two-office structure made the case unique.

The Committee rejected the statutory argument built on N.J.S.A. 52:13D-17 and its ten-percent "interest in a corporation" definition. For attorneys, it held, DR 5-105(D) governs: if a lawyer must decline or withdraw from employment under DR 5-105, no partner or associate of his firm may continue that employment. Quoting its Opinion 329 (reviewing Opinion 313), it reaffirmed that the essential limiting factor is whether the prospective employee had "substantial responsibility" while with the former public employer; if so, neither he nor his firm may be involved in the adversarial litigation against the State or its agencies. The two-office structure did not avoid this, because the firm was a partnership in fact and every partner's and associate's actions are imputed to the entire firm.

The Committee noted its conclusion conformed with ABA Formal Opinion 342 (1975). It observed that no consent from the attorney general had been suggested, and that a government agency may waive the firm's disqualification under DR 5-105(D) only when satisfied that screening will effectively isolate the individual lawyer from the matter and its fees and that there is no appearance of significant impropriety, while adding, per Opinion 329, that such consent from public bodies will probably be impossible to obtain.

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. Successive government-and-private employment and imputation are now analyzed under RPC 1.11 and RPC 1.10, which include screening provisions the 1976 rules did not. 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: Can a firm keep a case against the State after hiring the government lawyer who handled it?

A: Under this opinion, no, where that lawyer had substantial responsibility for the matter; his disqualification is imputed to the whole firm.

Q: Does putting the lawyer in a separate office solve the problem?

A: No. The Committee held the firm is a partnership in fact, so every partner's and associate's actions are imputed to the entire firm.

Q: Could the State consent to let the firm continue?

A: Only on strict conditions, and the Committee said such consent from public bodies will probably be impossible to obtain.

Background and rules framework

The opinion applied the imputation rule of DR 5-105(D), as developed in its Opinions 313 and 329 and consistent with ABA Formal Opinion 342, to a former deputy attorney general who joined a firm opposing the State. In current New Jersey terms, the question is governed by RPC 1.11 and RPC 1.10.

Citations and references

Rules of Professional Conduct:

• DR 5-105(D) (imputation of a conflict to partners and associates), as in effect 1976; now MR 1.10 / NJ RPC 1.10, with successive-government-employment analysis under MR 1.11 / NJ RPC 1.11

Statutes:

• N.J.S.A. 52:13D-17 (post-employment restriction on former State officers and employees)

Other opinions cited:

• NJ ACPE Opinion 329, 99 N.J.L.J. 433 (1976); Opinion 313, 98 N.J.L.J. 753 (1975)
• ABA Committee on Ethics and Professional Responsibility, Formal Opinion 342 (1975)

See also

• NJ ACPE Op. 614: Successive Government and Private Employment of a Deputy Attorney General
• NJ ACPE Op. 569: Former Deputy Attorney General Representing a Licensee Before a Board
• NJ ACPE Op. 361: A Firm Defending People Its Associate Once Helped Investigate

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp339-1.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.

99 N.J.L.J. 601, July 8, 1976

OPINION 339

Conflict of Interest
Former Deputy Attorney General Now Employed by Firm Opposing State

The inquirer's firm represents a defendant in a condemnation action commenced by a municipality. Because the complaint and answer raised the question of whether some or all of the land is riparian and therefore owned by the State of New Jersey, the State was made a party and was represented by a deputy attorney general. The deputy attorney general in question has since become an employee of the inquirer's law firm. He will be working in an office of the firm in another county where, it is alleged, he has virtually no exchange of cases with the office where the partner in charge of the litigation works.

In the inquiry it is stated that the employee had substantial responsibility for the matter while he was a deputy attorney general but he has no knowledge of any of the critical facts or proofs which will be used by the State to prove its ownership of the property. Because of this and the organization of the law firm with separate offices in two different counties, the inquirer believes that the case is unique and his firm should be permitted to continue to represent the defendant.

It is first argued that the firm is not precluded from such representation under the existing conflict of interest law, N.J.S.A. 52:13D-17 which provides:

No State officer or employee or special State officer or employee, subsequent to the termination of his office or employment in any State agency, shall represent, appear for or negotiate on behalf of, or agree to represent, appear for, or negotiate on behalf of, whether by himself or through any partnership, firm or corporation in which he has an interest or through any partner, officer or employee thereof, any person or party other than the State in connection with any cause, proceeding, application or other matter with respect to which such State officer or employee or special State officer or employee 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. (Emphasis added)

The inquirer contends that since interest in a corporation is defined under the act as meaning the ownership or control of more than ten percent of the stock of the corporation, and since the former deputy attorney general does not have more than a ten percent interest in the partnership, the restriction of the statute should apply only to the former state officer and not to other members of the firm.

Whatever may be the merits of this argument as applied to other professions or callings, it cannot apply to attorneys. As to attorneys, DR 5-105(D) provides that "[i]f a lawyer is required to decline employment or to withdraw from employment under DR 5-105, no partner or associate of his or his firm may continue such employment." In Opinion 329, 99 N.J.L.J. 433 (1976), this Committee reviewed its Opinion 313, 98 N.J.L.J. 753 (1975). We then stated that "[t]he essential limiting factor in the relationship is whether the prospective employee had any 'substantial responsibility' ... while with the former public employer. If so, he may not accept such employment, ..." nor may his firm continue to be involved in the adversarial litigation within the state or any of its agencies.

The distinction made by the inquirer that his firm has two separate offices will not preclude the violation of the statute and the rule. Many firms now maintain separate offices, but they are partnerships in fact and the actions of every partner or associate are imputed to the entire firm.

The Committee has reviewed Formal Opinion 342 of the American Bar Association Committee on Ethics and Professional Responsibility (1975) and this conclusion conforms with that Opinion. It has not been suggested here that the attorney general has or would give consent to the continued representation of the client by the firm. Only when the governmental agency is satisfied that the screening measures employed will effectively isolate the individual lawyer from participating in the particular matter, and sharing in the fees attributable to it, and that there is no appearance of significant impropriety affecting the interests of the government, may the government waive the disqualification of the firm under DR 5-105(D). This Committee has not yet had the occasion to consider those circumstances under which such consent may be given, but has simply stated that in connection with such impermissible employment consent from public bodies will probably be impossible to obtain. Opinion 329, supra.