Can a former deputy attorney general represent a private client before a licensing board he once advised, in a disciplinary matter that began during his government service but that he never worked on?

Plain-English summary

The inquirer was a former deputy attorney general who had been assigned to represent various professional and occupational licensing boards of the Division of Consumer Affairs. Now in private practice, he asked whether he could represent a licensee facing possible board discipline arising from an investigation that began while he was a deputy attorney general but of which he had no knowledge. He explained that such investigations are handled by the Enforcement Bureau, not the Division of Law and Public Safety, and that he had no contact whatever with this one.

The Committee assumed the inquirer had at some point represented the board before which the proceeding was pending. Because he had no actual or supervisory involvement with the investigation, the analysis turned on the appearance of impropriety under RPC 1.11(b). The Committee drew on In re Advisory Opinion No. 361, 77 N.J. 199 (1978), in which the New Jersey Supreme Court reviewed the Committee's earlier Opinion 361 and reconsidered the broad disqualification language of In re Biederman. The Court held that actual responsibility for or participation in a proceeding is disqualifying, and that an attorney who, by reason of status, became aware of information on a matter pending in the office should refrain from related private employment, but that where those factors are absent a conflict does not exist.

Applying that standard, the Committee held the situation analogous to that of a former assistant county prosecutor. It concluded that a former assistant deputy attorney general not disqualified by involvement in a particular matter should, like the former prosecutor in Opinion 361 as modified, observe a six-month personal disqualification from the date his public employment ended, a disqualification personal to him and not imputed to others in his firm. Because the inquirer had been in private practice for over six months, the Committee held the proposed representation proper. The New Jersey Supreme Court affirmed the opinion in In re Petition for Review of Opinion 569, 103 N.J. 325 (1986).

Currency note

This opinion was issued in 1985, before New Jersey's adoption of the 2004 revisions to the Rules of Professional Conduct (which, among other changes, abolished the freestanding "appearance of impropriety" standard the Committee applied 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: Does a former government lawyer's mere prior representation of an agency disqualify him from later opposing it?

A: Not by itself. The opinion held that actual responsibility for or participation in the particular matter, or having gained information about it by reason of status, is what disqualifies; absent those factors, no conflict exists.

Q: How long must a former deputy attorney general wait before taking such a matter?

A: Per the opinion, six months from the date his public employment ended, mirroring the temporary disqualification the Supreme Court set for former assistant prosecutors in In re Advisory Opinion No. 361.

Q: Is the six-month disqualification imputed to the lawyer's whole firm?

A: No. The opinion described the disqualification as personal to the former government attorney and not applicable to others in his firm.

Background and rules framework

The opinion applies RPC 1.11(b), New Jersey's rule on successive government and private employment, through the lens of the appearance-of-impropriety doctrine as it stood in 1985. The controlling authority is the New Jersey Supreme Court's decision in In re Advisory Opinion No. 361, 77 N.J. 199 (1978), which refined the disqualification standard first stated in In re Biederman, 63 N.J. 396 (1973), and the Committee's own Opinion 361.

Citations and references

Rules of Professional Conduct:

• MR 1.11 / NJ RPC 1.11(b) (successive government and private employment; appearance of impropriety)

Former disciplinary rule context:

• Appearance-of-impropriety doctrine as applied to former government attorneys

Cases:

• In re Advisory Opinion No. 361, 77 N.J. 199 (1978) (refining disqualification of former government attorneys; six-month personal disqualification)
• In re Biederman, 63 N.J. 396 (1973) (earlier, broader disqualification language)
• In re Petition for Review of Opinion 569 of the ACPE, 103 N.J. 325 (1986) (affirming this opinion)

Other opinions cited:

• ACPE Opinion 361, 100 N.J.L.J. 1 (1977) (disqualification of firm where associate had been on prosecutor's staff)

See also

• NJ ACPE Op. 614: Successive Government and Private Employment (Deputy AG)
• NJ ACPE Op. 634: Former Prosecutor in Civil Action Against an Indicted Defendant
• NJ ACPE Op. 583: Ex Parte Communications With Professional Boards

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp569-1.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.

116 N.J.L.J. 257, August 22, 1985

Affirmed, In re Petition for Review of Opinion 569 of the ACPE, 103 N.J. 325 (1986)

OPINION 569

Conflict of Interest - Former Deputy Attorney General Representing Licensee Before Professional Board for which He Formerly Served

The inquirer is a former deputy attorney general who was assigned to represent various professional and occupational licensing boards of the Division of Consumer Affairs during his tenure with the State. Now in private practice, he asks whether he may properly represent a licensee who faces possible disciplinary action by a licensing board as the result of an investigation which began while the inquirer was employed by the State but of which he had no knowledge. The inquirer stresses that he had no contact whatever with the investigation, informing us that such matters are handled by the Enforcement Bureau of the Division of Consumer Affairs, and not by the Division of Law and Public Safety. We are told that while a deputy attorney general assigned to represent a particular board might or might not participate in a given investigation as conditions warrant, this investigation was completely outside the scope of the inquirer's participation, knowledge and responsibility. The sole nexus of concern is the fact that the investigation originated while the inquirer was a deputy attorney general representing several of the professional boards.

Although the inquiry does not so specify, we shall assume that the inquirer at some point represented the board before which the disciplinary proceeding is pending even though he was unaware of this investigation, a circumstance he says is not unusual. Because the inquirer had no actual or supervisory involvement whatever with the investigation which he now wishes to contest as a private attorney, the focus here is upon the appearance of impropriety. R.P.C. 1.11(b). In In Re Advisory Opinion No. 361, 77 N.J. 199 (1978), the New Jersey Supreme Court had occasion to review a ruling of this Committee, Opinion 361, that the appearance of impropriety precludes a firm from representing a defendant who was investigated or indicted during the time an associate of the firm was on the staff of the county prosecutor concerned. Relying in part on In re Biederman, 63 N.J. 396 (1973), we said that "the fact the assistant prosecutor had no connection whatever with the investigation or with the preparation of the case is immaterial." Opinion 361, 100 N.J.L.J. 1 (1977). On review the Supreme Court reconsidered the wording of its opinion in Biederman, saying:

We believe that the language that disqualification follows 'even though the attorney had played no part in the investigation and prosecution' or because the case 'had originated while he was connected with the office' is somewhat over-broad. Of course, actual responsibility for or participation in any aspect of a proceeding is, as stated above, disqualifying. And where the attorney because of his or her status becomes aware of any information or material on a matter pending in the prosecutor's office, then he or she should refrain from related private employment, even though no other responsibility had existed. [citation omitted]. But where each of these factors is missing, then a conflict of interest does not exist. 77 N.J. at 205.

The Court went on to hold that in order to avoid the appearance of impropriety, a former assistant prosecutor not disqualified by reason of his involvement in a particular matter nevertheless should not appear in any criminal matter in the county where he served for a period of six months from the date of termination of his public employment, a temporary disqualification personal to him and not applicable to others in his firm. 77 N.J. at 206. Our Opinion 361 was modified accordingly.

The situation here is analogous. On the authority of In re Advisory Opinion No. 361, supra, we believe that an assistant deputy attorney general no less than an assistant county prosecutor should be allowed to represent a private client in connection with an investigation which began while the attorney was in government service but with which he had no connection whatever, subject to the same six month period of personal disqualification. Accordingly, and since the inquirer has now been in private practice for over six months, we hold that the proposed representation would be proper.