Can a former deputy attorney general who helped draft an agency's rules later represent a private client appealing or challenging those same rules?

Plain-English summary

While employed as a deputy attorney general, the inquirer was assigned to advise the Department of Environmental Protection and, in that capacity, advised and assisted the department in drafting rules and regulations under the Coastal Areas Facilities Review Act, N.J.S.A. 13:19-1 et seq. He left the Attorney General's office in January 1976 and became employed by a law firm that had represented an association interested in those rules, a firm that had submitted comments to the department on the proposed rules both before and after he left. The rules were first published in April 1976 and adopted in April 1977. He asked whether he could now represent the association in a notice of appeal challenging those rules.

The Committee answered that he should not. It applied DR 9-101(B), which provides that a lawyer shall not accept private employment in a matter in which he had substantial responsibility while a public employee. Having advised and assisted in drafting the very rules now under challenge, the inquirer had substantial responsibility in the matter and was barred from representing the association in the appeal.

Currency note

This opinion was issued in 1977, 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 applied DR 9-101(B), the rule on a former public employee's later private employment; in current New Jersey terms the successive-government-and-private-employment rule corresponds to RPC 1.11. Treat this page as historical context, not current guidance.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 former government lawyer attack rules he helped write?

A: Under this opinion, no. Because he had substantial responsibility in drafting the rules as a deputy attorney general, DR 9-101(B) barred him from later representing a private client challenging them.

Q: Did it matter that his new firm had commented on the rules while he was still in government?

A: The Committee's holding turned on his own substantial responsibility as a public employee in drafting the rules, which placed the later private employment squarely within DR 9-101(B).

Background and rules framework

The opinion applied DR 9-101(B), which bars a lawyer from accepting private employment in a matter in which he had substantial responsibility as a public employee. In current New Jersey terms, successive government-and-private employment is governed by RPC 1.11.

Citations and references

Rules of Professional Conduct:

• MR 1.11 / NJ RPC 1.11 (former government lawyer); DR 9-101(B) as in effect 1977

Statutes:

• N.J.S.A. 13:19-1 et seq. (Coastal Areas Facilities Review Act)

See also

• NJ ACPE Op. 381: Former Deputy Attorney General Joining a Firm Opposing the State
• NJ ACPE Op. 388: Former Township Attorney Representing a Variance Applicant
• NJ ACPE Op. 504: Former Municipal Defense Counsel Suing the Municipality

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp379-1.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.

100 N.J.L.J. 1029, November 10, 1977

OPINION 379

Conflict of Interest - Former Legal
Official Challenging Rules He Had Helped Draft

The inquirer, while employed as a deputy attorney general, was assigned to advise the Department of Environmental Protection. In such capacity, he advised and assisted the department in the drafting of rules and regulations under the Coastal Areas Facilities Review Act, N.J.S.A. 13:19-1, et seq. He left the Attorney General's office in January 1976, and thereupon became employed by a law firm which had represented an association interested in such rules and regulations. This firm, on behalf of such association, had made comments to the Department of Environmental Protection on the proposed rules and regulations, both before the inquirer left the Attorney General's office and thereafter. The rules were first published in April 1976, and were eventually adopted in April 1977. The inquirer now asks whether he may represent the association in connection with a notice of appeal challenging those rules and regulations. The answer to the specific inquiry is that he should not. DR 9-101(B) provides:

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