Does the appearance-of-impropriety bar reach a law clerk or non-lawyer who moves to a firm handling asbestos or tobacco litigation?

Plain-English summary

A member of the Judiciary asked whether the appearance of impropriety described in Dewey v. R. J. Reynolds Tobacco Co. should extend to non-lawyers or law students who did not have substantial responsibility for, or access to, confidential information in a matter while employed by another firm.

The Committee held that its prior Opinion 525 applies equally to law school graduates, law clerks, pre-law school clerks, and summer interns. It reasoned that a prior association with asbestos or tobacco litigation should not, under ordinary circumstances, bar subsequent employment with firms involved in such litigation, provided some form of screening mechanism (a "Chinese wall") is created to isolate the person from contact with that litigation.

On that basis the Committee concluded that such employment would not violate the appearance of impropriety referred to in Dewey, nor otherwise require disqualification of the hiring firm from a pending matter.

Currency note

This opinion was issued in 1989, before New Jersey's adoption of the 2004 revisions to the Rules of Professional Conduct, which abolished the "appearance of impropriety" standard the Committee relied on here. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule mentioned here.

Common questions

Q: Does a non-lawyer's prior work on a matter disqualify the firm that later hires them?

A: Per the opinion, not under ordinary circumstances, where the person did not have substantial responsibility for or access to confidential information and a screening mechanism isolates them from the matter.

Q: Does Opinion 525's screening approach apply to law clerks and summer interns?

A: Yes. The Committee held Opinion 525 "applies equally as well to law school graduates, law clerks, pre-law school clerks and summer interns."

Q: What did the firm need to do to avoid disqualification?

A: The Committee required "some form of 'Chinese wall' or screening mechanism" to isolate the person from contact with the litigation.

Background and rules framework

The opinion turns on the "appearance of impropriety" standard then governing imputed disqualification in New Jersey, as discussed in Dewey v. R. J. Reynolds Tobacco Co. The Committee extended its earlier screening analysis from Opinion 525 (and Opinion 361, as modified by the Supreme Court) to non-lawyer personnel and law clerks who lacked substantial responsibility for, or confidential access to, the prior matter.

Citations and references

Cases:

• Dewey v. R. J. Reynolds Tobacco Co., 109 N.J. 201 (1988), appearance of impropriety and screening

Other opinions cited:

• ACPE Opinion 525, 113 N.J.L.J. 365 (1984) (screening of personnel)
• ACPE Opinion 361, 100 N.J.L.J. 1 (1977), mod., 77 N.J. 199 (1978)

See also

• NJ ACPE Op. 636: Former Judicial Law Clerk and the Hiring Firm
• NJ ACPE Op. 667: Imputed Disqualification on Employment of a Partner From an Adverse Firm
• NJ ACPE Op. 654: Former In-House Defense Counsel Joining a Plaintiffs' Firm

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp633-1.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.

124 N.J.L.J. 1122, November 2, 1989

OPINION 633

Hiring of Associate Previously Employed as Law Clerk in Another Firm Engaged in Asbestos or Tobacco Litigation

The inquirer, a member of the Judiciary, asks whether or not the appearance of impropriety described in Dewey v. R. J. Reynolds Tobacco Co., 109 N.J. 201 (1988), would or should extend to non-lawyers or law students who did not have substantial responsibility for or access to confidential information in a matter while in the employ of another firm.

We believe that our prior holding in Opinion 525, 113 N.J.L.J. 365 (1984) applies equally as well to law school graduates, law clerks, pre-law school clerks and summer interns. More specifically, it is our opinion that a prior association with asbestos or tobacco litigation should not, under ordinary circumstances, be a bar to subsequent employment with law firms involved in such litigation, provided that some form of "Chinese wall" or screening mechanism is created to isolate them from contact with such litigation. Opinion 525, supra., 113 N.J.L.J. 365; Opinion 361, 100 N.J.L.J. 1 (1977), modified, In re Advisory Opinion 361, 77 N.J. 199 (1978). Accordingly, such employment would not be violative of the "appearance of impropriety" referred to in Dewey v. R. J. Reynolds Tobacco Co., supra., 109 N.J. 201, or otherwise require disqualification of the hiring firm from a pending matter.