After leaving office as county counsel, can a lawyer represent a private client in an action against the county board of freeholders?

Plain-English summary

An attorney who had recently completed a term as county counsel asked whether he could now appear for a private litigant in an action where the board of chosen freeholders was a party defendant. He indicated that any matter he undertook would be completely disassociated from transactions he handled while counsel to the governing body.

The Committee explained that a county counsel's clients include the county and its board of chosen freeholders. When he ceases to serve, he cannot thereafter ethically accept a retainer if the subject matter relates in any way to matters that were the subject of his prior services as counsel. A lawyer should never accept a retainer adverse to a former client without taking extreme care that the new matter will not be affected by confidential information from the former retainer.

The Committee drew a sharp line on consent: while a former private client may consent to a later adverse appearance even where a conflict may be involved, that consent cannot be obtained where the former client is a public agency. It added that the danger is greater where the prior relationship is recent, that it is often hard to tell what confidential knowledge a lawyer gained, that doubts should be resolved in favor of the former client, and that the spirit of the Canons requires avoiding even the appearance that a conflict exists which might be used unfairly against the first client.

Currency note

This opinion was issued in May 1964, before New Jersey's September 13, 1971 adoption of the Disciplinary Rules (Code of Professional Responsibility), and well before the 1984 Rules of Professional Conduct and all later revisions. It applied Canons 6 and 37 of the former Canons of Professional Ethics; duties on leaving government service and to former clients are now governed by RPC 1.11 and RPC 1.9. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.

Common questions

Q: Could the former county counsel sue the county if the matter was unrelated to his prior work?

A: The Committee held he may not accept the retainer if the subject matter relates in any way to matters he handled as counsel, and that he should resolve any doubt about confidential knowledge in favor of the former client.

Q: Could the county consent to the former counsel appearing against it?

A: No. The Committee held that while a private former client may consent, consent cannot be obtained where the former client is a public agency.

Q: Did the recency of his service matter?

A: Yes. The Committee said the dangers of conflict are much greater where the attorney-client relationship with the first client ended relatively recently.

Background and rules framework

The opinion applied Canons 6 and 37 of the former Canons of Professional Ethics, focused on duties to a former public client and the use of confidential information. It emphasized that a public agency cannot consent to a former lawyer's adverse appearance. These duties are now addressed by RPC 1.11 (former and current government officers) and RPC 1.9 (duties to former clients).

Citations and references

Rules of Professional Conduct (as in effect at the time):

• Canon of Professional Ethics 6 (adverse influences and conflicting interests)
• Canon of Professional Ethics 37 (confidences of a client)

See also

• NJ ACPE Op. 204: County Counsel and Private Clients Before Municipal Bodies
• NJ ACPE Op. 207: Former Assistant Prosecutor Defending an Indicted Person
• NJ ACPE Op. 53: Municipal Prosecutor Appealing for His Own Client

Source

• Landing page: https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp42-1.html

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

87 N.J.L.J. 285
May 7, 1964

OPINION 42

Conflict of Interests
Actions Against Former Clients

An attorney who recently completed a term as county counsel inquires whether he may now appear for a private litigant in an action where the board of chosen freeholders is a party defendant. He indicates that any matter which he would undertake would be completely "disassociated from transactions that were handled while counsel to the governing body."

An attorney who serves as county counsel has among his clients as such the county and its board of chosen freeholders, which is the governing body of said county. When he ceases to serve as attorney to such a client, he cannot thereafter ethically accept a retainer with another client if the subject matter of his new retainer relates to any matters which were the subject of his services in any way as counsel to the first client (Canons of Professional Ethics, Canons 6 and 37).

A lawyer should never accept a retainer where his position may be adverse to that of a former client without taking extreme care to make certain that the new matter is one that will not be affected in any way by confidential information that he may have obtained in his former retainer. While a former private client may consent to his appearance in a later case, even though a conflict of interest may be involved, such consent cannot be obtained where the client is a public agency. Obviously, the dangers of such conflict of interests are much greater where the cessation of the attorney-client relationship as to the first client is relatively recent. It is frequently difficult to determine what information or knowledge of a confidential nature has come to a lawyer by reason of the attorney-client relationship, and certainly in considering a second retainer a lawyer should resolve any doubts in favor of his client. This is particularly so since the spirit of the Canons not only requires the avoidance of an actual conflict of interests but anything that might give rise to a belief in the minds of the public or others that a conflict in fact exists which may be used unfairly to the disadvantage of the first client.