Can a lawyer join a firm that represents casino clients before the Casino Control Commission when the lawyer's spouse is an assistant counsel at that Commission?

Plain-English summary

The inquirers were a married couple. The wife was an assistant counsel in the Legal Division of the New Jersey Casino Control Commission. The husband had been offered a litigation-department position with a New Jersey firm that performed legal services for casino-related interests and expected more such work. The husband wanted assurance that his joining would not disqualify the firm from representing casino clients, and represented that he would not be assigned to a casino-related case during his employment.

The wife had already obtained an opinion from the Executive Commission on Ethical Standards that neither the Casino Control Commission nor the Conflicts of Interest Law would bar her husband's employment, though that body advised her to refrain from acting as a Commission employee in any matter involving her husband's employer, to avoid both the actuality and the appearance of conflict. Because that body lacked jurisdiction over the Disciplinary Rules applicable to attorneys, the couple sought the Committee's opinion.

The Committee reviewed its earlier spouse-conflict opinions. Opinions 237 and 288 had barred one spouse from practicing criminal law where the other was an assistant prosecutor or deputy attorney general. But in Opinion 434, mindful of the Supreme Court's caution in Higgins that an appearance of impropriety must rest on a reasonable basis and not a fanciful possibility, the Committee had allowed the associates of one spouse to practice criminal law in the county where the other spouse was assistant prosecutor, subject to limitations. Applying the same reasoning, and influenced by the Executive Commission's conclusion that no ethical-standards violation existed, the Committee held that the husband's employment was ethical and that firm members could continue to represent casino interests, so long as the wife refrained from any matter involving her husband's employer and the husband was not assigned and would not accept any casino-related case. The Committee acknowledged the State's policy, recognized in Knight v. Margate, of regulating the casino industry with the utmost strictness, but found Opinion 434 controlling on the agreed facts.

Currency note

This opinion was issued in 1983, 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. The 2004 revisions abolished the freestanding "appearance of impropriety" standard the Committee weighed here. Subsequent rule amendments or later opinions may have changed the analysis. 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: Could the lawyer join the casino-client firm at all?

A: Yes. The opinion concluded the employment was ethical and did not disqualify the firm from representing casino clients, on the agreed conditions.

Q: What conditions did the opinion attach?

A: The spouse who was assistant counsel to the Casino Control Commission had to refrain from any matter involving the firm, and the joining lawyer could not be assigned to, and would not accept, any casino-related case.

Q: Why did the Committee allow this when earlier opinions barred spouses from related criminal practice?

A: It applied Opinion 434's middle-ground approach, reasoning that a stricter rule could leave a spouse virtually unemployable, and it was influenced by the Executive Commission on Ethical Standards' conclusion that the arrangement did not violate ethical standards.

Background and rules framework

The opinion was decided under the conflict principles then governing New Jersey lawyers and their spouses in government positions, before the 1984 adoption of the Rules of Professional Conduct. In current terms the analysis maps onto RPC 1.7 (concurrent conflicts, including those arising from a close family relationship), RPC 1.11 (conflicts for current and former government lawyers), and RPC 1.10 (imputation within a firm).

Citations and references

Rules of Professional Conduct:

• MR 1.7 / NJ RPC 1.7 (concurrent conflicts of interest, including family-relationship conflicts)
• MR 1.11 / NJ RPC 1.11 (government lawyer conflicts)
• MR 1.10 / NJ RPC 1.10 (imputation within a firm)

Cases:

• Higgins v. Advisory Committee on Professional Ethics, 73 N.J. 123 (1977)
• In re Gaulkin, 69 N.J. 185 (1975)
• Knight v. Margate, 86 N.J. 374 (1981)

Other opinions cited:

• NJ ACPE Opinion 237, 95 N.J.L.J. 410 (1972) (spouse of assistant prosecutor barred from county criminal practice)
• NJ ACPE Opinion 288, 97 N.J.L.J. 766 (1974) (spouse of deputy attorney general barred from state criminal practice)
• NJ ACPE Opinion 434, 104 N.J.L.J. 204 (1979) (controlling; associates of a prosecutor's spouse may practice with limitations)

See also

• NJ ACPE Op. 516: Partner of a Judge or County-Board Member as Assistant County Counsel
• NJ ACPE Op. 547: Sewerage Authority Counsel Whose Partner Sues the Authority

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp508-1.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.

111 N.J.L.J. 1, January 6, 1983

OPINION 508

Associates of Attorney Spouse of an Assistant Counsel of the New Jersey Casino Control Commission

The two inquirers are husband and wife. The wife is employed as an Assistant Counsel in the Legal Division of the New Jersey Casino Control Commission. The husband has been offered employment by a New Jersey law firm which "has performed legal services for casino-related interests and contemplates further additional legal work in this area". Thus, inquirer husband wishes to assure his potential employer that it will not be disqualified from the representation of casino-related clients.

Inquirer wife has already obtained an opinion from the Executive Commission on Ethical Standards of the Department of Law and Public Safety of the State of New Jersey that neither the Casino Control Commission nor the Conflicts of Interest Law would bar her husband from accepting employment as an associate of a law firm with casino clients. However, the Commission advised the wife to "refrain from acting as an employee of the Casino Control Commission in any matter involving your husband's employer to avoid the possibility, however remote, that your objectivity in the performance of your official duties might be impaired and, also, to protect against the appearance as well as the actuality of conflict of interest. See Casino Control Commission Code of Ethics, Article III, Section 9 and 14."

Since the Executive Commission of Ethical Standards does not have jurisdiction over the Disciplinary Rules applicable to attorneys practicing in this State, inquirers seek an opinion from this Committee.

Inquirer husband seeks association with his potential employer in the litigation department and represents that he will not be assigned to a casino-related case during his employment with said employer.

In our Opinion 237, 95 N.J.L.J. 410 (1972) we held that it was unethical for one spouse to practice criminal law in a county in which the other spouse was an Assistant Prosecutor. In our Opinion 288, 97 N.J.L.J. 766 (1974) we held that it was unethical for one spouse to practice criminal law in the State of New Jersey where the other spouse was a Deputy Attorney General with the Division of Criminal Justice of the State of New Jersey.

However, this Committee, mindful of the admonition of the Supreme Court in Higgins v. Advisory Committee on Professional Ethics, 73 N.J. 123, 129 (1977) that the "appearance of impropriety must be something more than a fanciful possibility. It must have some reasonable basis", decided in Opinion 434, 104 N.J.L.J. 204 (1979) that the associates of one spouse may continue to practice criminal law in the county where the other spouse serves as Assistant Prosecutor. The basis of Opinion 434, supra, was that the attorney spouse would not practice criminal law himself and his associates would not undertake the representation of a defendant "who is being prosecuted" by the associate's spouse. With these limitations, Opinion 434, supra, reached a middle ground between a strict interpretation of the "appearance of impropriety" standard and a more practical approach which would recognize "that marriage partners are independent individuals fully capable of pursuing separate professional careers". Opinion 434, supra, citing In re Gaulkin, 69 N.J. 185 (1975). Likewise, Opinion 434, supra, recognized that a more strict interpretation of the Disciplinary Rules could in many circumstances leave one spouse virtually unemployable either in a particular county or in the State. Such, we think, is the situation presented by the inquirers herein. It is recognized that a large number of law firms throughout the State have represented or desire to represent casino-related interests before the Casino Control Commission. Thus, the same reasoning which we used in Opinion 434, supra, is applicable under these circumstances, to wit: if our reply to the inquirers is in the negative, the husband's ability to obtain employment with most substantial law firms in the State will probably be diminished.

In view of the representation by which each spouse has agreed to be bound, which we accept as set forth in the inquiry, our Opinion 434, supra, is controlling. Those representations are that the husband can and will be completely insulated, directly and indirectly, from any casino-related case handled by his potential employer. As pointed out in that opinion, "there always will be those who infer impropriety from any personal relationship between a private practitioner and a public official, [but] we cannot say that such an inference would be reasonably drawn in this situation".

We are cognizant of the admonition by our Supreme Court in Knight v. Margate, 86 N.J. 374, 392 (1981) that "...it is the pronounced policy of this State to regulate and control the casino industry with the utmost strictness to the end that public confidence and trust in the honesty and integrity of the State's regulatory machinery can be sustained". Nonetheless, even though we could distinguish Opinion 434, supra, on the basis of the Knight case, supra, we are influenced by the opinion contained in the response from the Executive Commission on Ethical Standards of the Department of Law and Public Safety of the State of New Jersey referred to above. If the Executive Commission charged with interpreting Ethical Standards under the Casino Control Act is satisfied there is no violation of ethical standards under the circumstances set forth in the inquiry, then we do not believe we should distinguish Opinion 434.

Accordingly, for the reasons expressed in Opinion 434, supra, we find that if the inquirer husband is employed by a law firm representing casino-related interests, said employment is ethical and that members of said firm may continue to represent casino-related interests as long as his spouse as an Assistant Counsel of the New Jersey Casino Control Commission, refrains from becoming involved in any matter involving her spouse's employer and said husband inquirer is not assigned and will not accept assignment to any casino-related case during his employment with said law firm.