When a Deputy Attorney General joins a private firm, what matters before his former state agency can he and the firm still handle?

Plain-English summary

Attorney X was on the Attorney General's staff with supervisory and direct responsibility for the legal work of a state agency, and wished to join a firm that regularly had matters pending before that agency within his overall supervisory responsibility. The Committee reframed the inquiry from whether the association is proper to what matters the firm and X may continue to handle before the agency, concluding the association would be proper if the firm withdrew from matters improper for it to handle.

The Committee analyzed RPC 1.11(a) and (b), noting these rules are more restrictive than the general former-government-employee statute (N.J.S. 52:13D-17) and than ABA Model Rule 1.11, and are informed by In re Advisory Opinion 361, Ross v. Canino, and In re Petition for Review of Opinion 569. Under RPC 1.11(a), if the former government lawyer is involved in a covered matter, both he and any firm with which he is associated are barred from representing a private client in that matter. The Committee parsed the sub-parts: substantial personal participation (sub-part 1), which excludes minor involvement like being told a subpoena was served but includes reviewing or assessing a file even to assign it; knowledge of confidential information (sub-part 2), which mandates disqualification if present in any degree; and substantial responsibility (sub-part 3), which is more than bare "overall" or "ultimate" responsibility but is met by actively deciding a matter of substance (mere rotational assignment does not qualify). RPC 1.11(b), by contrast, is broader as to matters but disqualifies only the lawyer, not the firm, from a private client in a matter relating to the lawyer's former employment.

Currency note

This opinion was issued in 1988, before New Jersey's adoption of the 2004 revisions to the Rules of Professional Conduct, and the text and numbering of RPC 1.11 have since changed. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule mentioned here.

Common questions

Q: Must the firm itself withdraw, or just the former government lawyer?

A: Per the opinion, under RPC 1.11(a) both the lawyer and the firm are barred from a matter in which the lawyer had substantial participation, confidential knowledge, or substantial responsibility; RPC 1.11(b) bars only the lawyer from matters merely relating to his former employment.

Q: Does supervisory or "overall" responsibility count as "substantial responsibility"?

A: No. The Committee said bare overall or ultimate responsibility is not enough; substantial responsibility requires actively exercising responsibility, such as deciding a matter of substance. Assigning a matter to a subordinate on a purely rotational basis does not qualify.

Q: What if the lawyer had any confidential information about the matter?

A: Disqualification is mandated. The Committee said the confidential-information criterion of RPC 1.11(a) is clear: if it is present in any degree, the lawyer (and firm) are disqualified.

Background and rules framework

The opinion applies NJ RPC 1.11(a) and (b) (Model Rule 1.11), governing successive government and private employment. It notes New Jersey's version is more restrictive than both the general statute (N.J.S. 52:13D-17) and ABA Model Rule 1.11, balancing the recruitment and retention of government lawyers against public confidence in the bar, as developed in In re Advisory Opinion 361, Ross v. Canino, and In re Petition for Review of Opinion 569.

Citations and references

Rules of Professional Conduct:

• MR 1.11 / NJ RPC 1.11(a), (b) (successive government and private employment)

Statutes:

• N.J.S. 52:13D-17 (general conflicts rule for former government employees)

Cases:

• In re Advisory Opinion on Professional Ethics No. 361, 77 N.J. 199 (1978)
• Ross v. Canino, 93 N.J. 402 (1983), meaning of "substantial" participation and responsibility
• In re Petition for Review of Opinion 569, 103 N.J. 325 (1986)
• Dewey v. R. J. Reynolds Tobacco Company, 109 N.J. 201 (1988), factors in whether an attorney "represented" a client

See also

• NJ ACPE Op. 634: Former Prosecutor and a Related Civil Action
• NJ ACPE Op. 705: Former Government Attorneys and Screening
• NJ ACPE Op. 660: Deputy AG Joining an Insurance-Coverage Firm

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp614-1.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.

122 N.J.L.J. 194, July 21, 1988

OPINION 614

Successive Government and Private Employment by Deputy Attorney General

Attorney X is a member of the Attorney General's staff having supervisory and direct responsibilities for the legal work done for a state agency. He wishes to become associated with a law firm which, on a regular basis and currently, has legal matters pending before that State agency, matters which are within the overall supervisory responsibility of Attorney X.

While the inquiry is couched in terms of the propriety of the prospective association, we feel that the more appropriate question is what matters, if any, may the law firm and/or Attorney X continue to handle before the agency after Attorney X becomes associated with the firm. The association will be proper if the law firm withdraws from matters improper for it to handle and takes other actions as set forth below.

RPC 1.11(a) and (b) sets forth the guidelines concerning what a lawyer and his firm may and may not do in private practice with respect to matters relating to the lawyer's former employment as a public officer or employee. These rules appear to codify and, in turn, are clarified by pronouncements of the Supreme Court on the subject such as In re Advisory Opinion on Professional Ethics No. 361, 77 N.J. 199 (1978) and Ross v. Canino, 93 N.J. 402 (1983), and the explanatory comments to RPC 1.11.

These authorities confirm that RPC 1.11(a) and (b) are more restrictive than the general rule as to all former government employees including lawyers as contained in N.J.S. 52:13D-17 and are also more restrictive than the similar paragraphs of the ABA Model Rule 1.11. They, nonetheless, are intended to balance the competing interests relating to the recruitment and retention of government lawyers. See In re Petition for Review of Opinion 569, 103 N.J. 325 (1986), and the need to maintain public confidence in the integrity of the bar and the administration of justice. Ross, supra, at 409.

As we interpret that rule in the light of the authorities cited, if the former government lawyer is involved in a matter falling within the definition set forth in RPC 1.11(a), both he and any firm with which he is associated are barred from representing a private client in connection with that matter.

But the language of RPC 1.11(a) is subject to some interpretation. For example, for sub-part 1 of RPC 1.11(a) to apply, the attorney's personal participation in the matter in question must be substantial. In Ross v. Canino, supra, advice by a subordinate to the former attorney general that a subpoena had been served on a witness in the matter was not considered "substantial" participation by the former attorney general. On the other hand, we believe that if the attorney had any occasion to review the file or discuss it for any purpose including the assessment or consideration of its substance or weight for the purpose of assigning it to subordinates - that would be substantial participation. See e.g., Dewey v. R. J. Reynolds Tobacco Company, 109 N.J. 201, 216, (1988) outlining some of the factors the court considered in determining whether an attorney had in fact "represented" a client.

The criterion in sub-part 2 of RPC 1.11(a), i.e., lack of knowledge of confidential information relating to the matter is clear. If this is present in any degree, disqualification is mandated.

The criterion in sub-part 3 of RPC 1.11(a), i.e., "substantial responsibility" has been interpreted in both In re Advisory Opinion 361, supra, and in Ross v. Canino, supra, as not including bare "overall" or "ultimate" responsibility. It must be something more. But we believe that the active exercise of responsibility for the matter such as making a decision with respect to a matter of substance will qualify as "substantial responsibility." A decision on a matter such as its assignment to a subordinate solely on a rotational basis would not, however, qualify as the exercise of substantial responsibility.

RPC 1.11(b), on the other hand, is a much broader rule disqualifying the lawyer only but not his firm from representing a private client in connection with a matter "relating to the lawyer's former employment."