If a law firm hires the former assistant municipal attorney who litigated a case for the town, can the firm keep representing the developer on the other side?

Plain-English summary

The inquirer was a principal in a business partnership and had successfully represented it in a development application before a municipal board of adjustment. After the municipality sued to set aside the approval and the dismissal of its complaint was reversed on appeal, the inquirer hired, as an associate, the former assistant township attorney who had handled the litigation for the township. He asked whether his firm could keep representing the developer in further proceedings, and if not, whether he could appear pro se and use other firm lawyers to prepare the case.

The Committee held that under DR 9-101(B) a lawyer may not accept private employment in a matter in which he had substantial responsibility as a public employee, so the former assistant township attorney plainly could not now represent the developer. That disqualification extends to the entire firm employing him (DR 5-105(D); R. 1:15-3(c)).

Hiring him created a clear conflict that could not be eliminated by discharging him or even by the municipality's consent. Citing Opinion 381, the Committee held the firm must withdraw from representing the development firm. It rejected the pro se option as well: because the inquirer would in fact be representing the interests of the entire business partnership, that representation would be unethical too.

Currency note

This opinion was issued in 1978, before New Jersey's 1984 replacement of the Disciplinary Rules by the Rules of Professional Conduct and the later revisions to those rules. It applied DR 9-101(B) (former public employee) and DR 5-105(D) (imputation); in current New Jersey terms the analysis corresponds to RPC 1.11 and RPC 1.10. Treat this page as historical context, not current guidance.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 the firm keep the developer's case after hiring the town's former lawyer?

A: No. The opinion held the former assistant township attorney is disqualified under DR 9-101(B), the disqualification is imputed to his firm, and the firm must withdraw.

Q: Can the conflict be cured by firing the new associate or by the town consenting?

A: No. The opinion held the conflict could not be eliminated by discharging the former assistant township attorney or even by the municipality's consent.

Q: Can the principal at least appear pro se?

A: No. The opinion concluded that, because he would in fact be representing the whole business partnership, appearing pro se would also be unethical.

Background and rules framework

The opinion applied DR 9-101(B), barring a lawyer from private employment in a matter for which he had substantial responsibility as a public employee, and DR 5-105(D) and R. 1:15-3(c), imputing one lawyer's disqualification to the firm. In current New Jersey terms the analysis corresponds to RPC 1.11 (former government officers and employees) and RPC 1.10 (imputation of conflicts).

Citations and references

Rules of Professional Conduct:

• MR 1.11 / NJ RPC 1.11 (former government officers and employees)
• MR 1.10 / NJ RPC 1.10 (imputation of conflicts)
• DR 9-101(B), DR 5-105(D), R. 1:15-3(c) (as in effect 1978)

Other opinions cited:

• NJ ACPE Opinion 388, 101 N.J.L.J. 120 (1978); Opinion 381, 100 N.J.L.J. 1051 (1977); Opinion 112, 90 N.J.L.J. 365 (1967)

See also

• NJ ACPE Op. 417: Sharing a Law Library and "Office Associate" Status
• NJ ACPE Op. 401: Municipal Solicitor Representing Developers and Land Purchasers
• NJ ACPE Op. 415: Office Relationships Between Municipal and County Counsel

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp409-1.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.

102 N.J.L.J. 450, November 16, 1978

OPINION 409

Conflict of Interest - Attorney-Developer Hiring Former Assistant Municipal Attorney

The inquirer represents a business partnership in which he is also a principal. He successfully represented the partnership in a development application before the board of adjustment of a municipality. The municipality then brought an action to set aside the board of adjustment's approval of the application, and although the trial court dismissed the township's complaint, the dismissal was reversed by the Appellate Division. Subsequently, the inquirer employed as an associate in his law firm the former assistant township attorney who had handled the litigation on behalf of the township. He now inquires as to whether his law firm may continue to represent the developer in a possible petition for certification or a new trial of the matter and, if not, whether he may appear pro se as one of the individual partners involved in the development firm. Finally he asks whether, if he may appear pro se, he can utilize one of the partners or associates in his firm, other than the former assistant township attorney, in the preparation of the case, as long as none of them actually appears on behalf of the developer.

Under DR 9-101(B), a lawyer may not accept private employment in a matter in which he had substantial responsibility while a public employee. Clearly, the former assistant township attorney could not now represent the developer, having represented the municipality in prior phases of the same matter. See Opinion 388, 101 N.J.L.J. 120 (1978). The disqualification of the former assistant township attorney extends to the entire firm by which he is employed. Cf. DR 5-105(D); R. 1:15-3(c).

A clear conflict of interest was created when the former assistant township attorney was hired by the inquirer, and that conflict cannot now be eliminated by the discharge of the former assistant township attorney or even by consent of the municipality. In Opinion 381, 100 N.J.L.J. 1051 (1977), we held that DR 5-105(D) prohibits a law firm representing one party to pending litigation from employing a former public employee who participated in the representation of a public body which was the other party to the litigation, even with the consent of the public body involved. Such situations must be avoided at all costs, and the law firm must immediately withdraw from the representation of the development firm. While in some instances it might be appropriate for a member of the bar to appear pro se even though his firm could not ethically represent him, here it is clear that the inquirer would be representing the interests of the entire business partnership, in fact if not in name, and therefore this representation would be unethical. Cf. Opinion 112, 90 N.J.L.J. 365 (1967), holding that a planning board attorney should not appear on behalf of his wife before the board of adjustment of the same municipality.