How long must a former New Jersey board of adjustment attorney wait before representing private clients before that board on new matters?

Plain-English summary

A former attorney for a municipal board of adjustment asked whether any time restriction limits his private practice before the board on matters never presented to the board during his tenure as counsel. The Committee explained that, to avoid even the appearance of impropriety under DR 9-101(B), there should normally be some waiting period before an attorney begins representing private clients before or against his former governmental employer, even where he is not otherwise disqualified, so as to reduce the public's perception that he is making improper use of his prior governmental association.

The Committee held it was without authority to prescribe any definite restriction in weeks, months, or years for an inquirer's prospective guidance. Absent a contrary expression by the Supreme Court through amendment of the Disciplinary Rules, the answer in each case must come from the attorney's own careful and informed judgment as to what is reasonable and proper under all the circumstances.

The Committee noted that it had deferred this inquiry pending the Supreme Court's review of Opinion 361, which the Court modified to hold that an assistant prosecutor, even if not otherwise disqualified, should not appear in any criminal matter against the State in the county where he served for six months after leaving office. It read that decision as containing no language extending the six-month bar to former public attorneys other than assistant prosecutors, preserving the general rule of reason for self-application in other cases. On the inquiry before it, the Committee said in retrospect that enough time had passed since its receipt and deferral of the inquiry to satisfy the appearance of propriety in the inquirer's representation of private clients on matters never presented to the board during his service.

Currency note

This opinion was issued in 1979, 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) and the now-abandoned "appearance of impropriety" standard; in current New Jersey terms the former-government-officer 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 Treat this page as historical context, not current guidance.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: Is there a set waiting period for a former board attorney to appear before the board?

A: No. The opinion held it could not prescribe a definite period; a reasonable interval is left to the attorney's own informed judgment.

Q: Why have any waiting period at all?

A: To avoid the appearance of impropriety under DR 9-101(B) and reduce the public's perception that the lawyer is improperly using his former governmental association.

Q: Did the six-month prosecutor rule apply here?

A: No. The opinion read the Supreme Court's modification of Opinion 361 as limited to assistant prosecutors and not extending the fixed six-month bar to other former public attorneys.

Background and rules framework

The opinion applied DR 9-101(B) and the appearance-of-impropriety standard, declining to set a bright-line period and leaving the question to the lawyer's reasonable judgment, while noting the narrow six-month rule the Supreme Court imposed only on former assistant prosecutors. In current New Jersey terms the former-government-officer rule corresponds to RPC 1.11. The holding was that no fixed restriction applies and that enough time had passed in this inquirer's case.

Citations and references

Rules of Professional Conduct:

• MR 1.11 / NJ RPC 1.11 (former and current government officers and employees)
• DR 9-101(B) (as in effect 1979)

Other opinions cited:

• NJ ACPE Opinion 207, 94 N.J.L.J. 451 (1971); Opinion 276, 96 N.J.L.J. 1461 (1973); Opinion 294, 97 N.J.L.J. 993 (1974); Opinion 361, 100 N.J.L.J. 1 (1977)

Cases:

• In re Advisory Opinion on Professional Ethics No. 361, 77 N.J. 199 (1978) (six-month bar for former assistant prosecutors)

See also

• NJ ACPE Op. 451: A Board Attorney Who Resigned, Took a Private Client, Then Returned
• NJ ACPE Op. 450: Suing a Former Client in an Unrelated Matter

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp429-1.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.

104 N.J.L.J. 16, July 5, 1979

OPINION 429

Conflict of Interest Former Municipal Adjustment Board Attorney Practice Before Board

A former attorney for a municipal board of adjustment asks whether there is any restriction in time which would limit his private practice before the board on matters never presented to the board during his tenure as its counsel.

In the interest of avoiding even the appearance of impropriety (DR 9-101(B)), normally there should be some waiting period before an attorney can begin representing private clients before or against his former governmental employer even though he is not otherwise disqualified. Such a period will make less likely the public's perception that he is making improper use of his previous association with the governmental employer. See Opinions 207, 94 N.J.L.J. 451 (1971), and 276, 96 N.J.L.J. 1461 (1973). This Committee, however, is without authority to prescribe any definite restriction in terms of weeks, months or years for the prospective guidance of a particular inquirer. In the absence of a contrary expression by the Supreme Court through amendment of the Disciplinary Rules or otherwise, the answer in each case must come from the attorney's own careful and informed judgment as to what is reasonable and proper under all the circumstances of his situation. See Opinion 294, 97 N.J.L.J. 993 (1974).

We have deferred action on this inquiry pending review by the Supreme Court of our Opinion 361, 100 N.J.L.J. 1 (1977), which concerned the extent to which an assistant county prosecutor is disqualified from practicing criminal law after leaving office. The Court now has modified that opinion, holding inter alia that an assistant prosecutor, even if not otherwise disqualified, should not appear in any criminal matter against the State in the county in which he served for a period of six months from termination of his public employment. In re Advisory Opinion, 77 N.J. 199, 206 (1978). The opinion of the Court contains no language warranting an extension of its holding to former public attorneys other than assistant prosecutors, and thus preserves the general rule of reason for self application in other cases. In response to the question before us, however, we can now say in retrospect that enough time has passed since our receipt and deferral of the inquiry to satisfy the appearance of propriety in the inquirer's representation of private clients in matters never presented to the board of adjustment during the period of his service as its attorney.