Can a Deputy Attorney General who had substantial involvement in a suit against the State join the law firm representing the plaintiffs while that suit is pending, if he is screened and the Attorney General consents?

Plain-English summary

The inquirer was a Deputy Attorney General who, several years earlier, had become substantially involved in litigation against the State of New Jersey, a suit then pending in the U.S. Supreme Court after passing through the State's courts. The plaintiffs had at all times been represented by a New Jersey law firm. The inquirer had had no involvement on the State's behalf for about a year and had been offered a salaried associate position with that plaintiffs' firm. The firm represented that it would not discuss or allow his participation in the pending action and would totally isolate and screen him from the matter, and the Attorney General had indicated he would consent, conditioned on the Committee's determining he was empowered to do so.

The Committee held that even if the Attorney General were empowered to consent, a question it did not need to reach, the consent would not dispose of the conflict, because of the directive in former Chief Justice Weintraub's "Notice to the Bar," 86 N.J.L.J. 713 (1963). That directive states that a lawyer who represents a public agency and also private clients whose interests come before it has an affirmative duty to disclose the conflict, withdraw completely from both representations as to the matter, and recommend independent counsel, and that where the public interest is involved disclosure alone is not sufficient because the attorney may not represent conflicting interests even with the consent of all concerned.

Because the litigation involved the public interest, the directive controlled. The Committee further applied DR 5-105(D), under which a lawyer's required disqualification extends to his partners and associates, and its Opinions 329 and 313, which turned on whether the prospective employee had "substantial responsibility" with the former public employer. Employing the inquirer during the pendency of the litigation would bring the plaintiffs' firm squarely within DR 5-105(D) and result in his having effectively represented both sides, which he could not do, and which here could not be cured by consent. The Committee therefore considered the employment proscribed unless the firm withdrew from the case.

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 5-105(D) (imputed disqualification) and the substantial-responsibility standard for former public employees; in current New Jersey terms those correspond to RPC 1.11 (former government lawyer) and RPC 1.10 (imputation). The opinion treated screening as insufficient because the public interest was involved; current New Jersey screening provisions for former government lawyers differ. 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 join the firm on the other side of a case he handled?

A: Under this opinion, not while that case is pending. The Committee found the employment proscribed by the Supreme Court's Notice to the Bar and DR 5-105(D), absent the firm's withdrawal from the case.

Q: Did screening the lawyer and getting the Attorney General's consent fix the problem?

A: No. Because the litigation involved the public interest, the Committee held that even consent could not cure the conflict, and the firm's screening did not change the result while the case was pending.

Q: Why was the whole firm affected, not just the lawyer?

A: DR 5-105(D) extended a lawyer's required disqualification to his partners and associates. Hiring the former Deputy AG during the litigation would bring the entire plaintiffs' firm within that prohibition.

Background and rules framework

The opinion applied DR 5-105(D), imputing a lawyer's disqualification to his firm, together with the substantial-responsibility standard for former public employees drawn from its Opinions 329 and 313, and treated former Chief Justice Weintraub's "Notice to the Bar" (1963) as controlling because the matter involved the public interest. In current New Jersey terms, successive government-and-private employment is governed by RPC 1.11 and firm-wide imputation by RPC 1.10.

Citations and references

Rules of Professional Conduct:

• MR 1.11 / NJ RPC 1.11 (former government lawyer); MR 1.10 / NJ RPC 1.10 (imputation); DR 5-105(D) as in effect 1977

Cases:

• In re A. and B., 44 N.J. 331 (1965), public-agency conflicts

Other authorities:

• Supreme Court "Notice to the Bar," 86 N.J.L.J. 713 (1963) (Weintraub, C.J.)

Other opinions cited:

• NJ ACPE Opinion 329, 99 N.J.L.J. 433 (1976); Opinion 313, 98 N.J.L.J. 753 (1975); Opinion 339, 99 N.J.L.J. 601 (1976); Opinion 344, 99 N.J.L.J. 705 (1976)

See also

• NJ ACPE Op. 388: Former Township Attorney Representing a Variance Applicant
• NJ ACPE Op. 504: Former Municipal Defense Counsel Suing the Municipality
• NJ ACPE Op. 634: Former Prosecutor in a Civil Action Against an Indicted Defendant

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp381-1.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. 1051, November 10, 1977

OPINION 381

Conflict of Interest
Former Deputy Attorney General;
Employment by Firm Opposing State

The inquirer presents the following inquiry: He is employed by the State of New Jersey as a Deputy Attorney General. Several years ago in his capacity as a Deputy Attorney General, he became involved in certain litigation initiated in the courts of this State and now pending in the U.S. Supreme Court. This suit is against the State of New Jersey. The plaintiffs in that litigation have been at all times represented by a law firm of this State. The inquirer, from the facts presented to us, had substantial involvement initially in the matter for a period of time, but has had no involvement on behalf of the State since approximately one year ago. He now has been offered a position as a salaried associate with the law firm which represents the plaintiffs in the litigation. The proposed employer law firm has represented that it will, under no circumstances, discuss or allow the inquirer's participation in the pending action in which the State is involved and that it will totally isolate and screen the inquirer from the matter. It further appears that the Attorney General has indicated that he will consent to such employment despite the continued pendency of the subject litigation, but has conditioned such consent on the determination of this Committee that he is empowered to do so.

It is our opinion that even if the Attorney General is empowered to give such consent, which we need not consider at this time, nevertheless, such consent would not dispose of the conflict of interest problem created by the employment because of the directive issued by former Chief Justice Joseph Weintraub in a "Notice to the Bar," 86 N.J.L.J. 713 (1963), which appears to be controlling. We quote:

Because of some matters called to its attention, the Supreme Court wishes to publicize its view of the responsibility of a member of the Bar when he is attorney for a municipality or other public agency and also represents private clients whose interests come before or are affected by it. In such circumstances the Supreme Court considers that the attorney has the affirmative ethical responsibility immediately and fully to disclose his conflict of interest, to withdraw completely from representing both the municipality or agency and the private client with respect to such matter, and to recommend to the municipality or agency that it retain independent counsel. Where the public interest is involved, disclosure alone is not sufficient since the attorney may not represent conflicting interests even with the consent of all concerned.

The litigation referred to in the inquirer's inquiry involves the public interest. The directive unequivocally prohibits the representation of conflicting interests even with the consent of all concerned.

In the case of In re A. and B., 44 N.J. 331, 333 (1965), the Court stated that:

As to attorneys, DR 5-105(D) provides that "If 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 with the state or any of its agencies.

Employment of the inquirer by the firm representing plaintiffs in the subject litigation, during the pendency of the litigation, would cause that firm to come squarely within the prohibition of DR 5-105(D). The effect of such employment would result in the inquirer having represented both the plaintiffs and the defendant in the pending litigation which he could not under ordinary circumstances do, unless informed consent of all parties concerned was first obtained. In the instant situation, however, because the public interest is involved, such consent cannot be given by reason of the directive of the Supreme Court of this State in its "Notice to the Bar," supra. See also our Opinion 329, 99 N.J.L.J. 433 (1976); 339, 99 N.J.L.J. 601 (1976); and 344, 99 N.J.L.J. 705 (1976).

We, therefore, consider the employment of the inquirer by the law firm to be proscribed by the Supreme Court directive unless the firm withdraws from the case.