Can a former judicial law clerk's new firm keep representing a party in a case that was pending before the judge during the clerkship?

Plain-English summary

The inquirer clerked for a judge who presided over various proceedings in three related litigated matters, but states that he had nothing to do with those matters because the judge's other law clerk had that responsibility, and the matters were later reassigned to a different judge. Now associated with a firm that represents one of the parties in each matter, the former clerk asked whether he is precluded from working on them and, if so, whether the firm could continue with a screening wall in place.

The Committee applied RPC 1.12(a), which (with an exception not relevant here) bars a lawyer from representing anyone in a matter in which the lawyer participated personally and substantially as a judge, adjudicative officer, arbitrator, or law clerk, unless all parties consent after disclosure. Because the inquirer had not participated personally and substantially, the Rule's bar did not apply. The Committee quoted its earlier Opinion 525, observing that young lawyers should not have their careers stunted where ethics considerations remain intact and the public perception does not suffer.

The Committee concluded that neither the inquirer nor the firm is ethically precluded from continuing to represent the clients in these cases.

Currency note

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 Treat this page as historical context, not current guidance.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

Common questions

Q: Is a former law clerk barred from a case that was on the judge's docket during the clerkship?

A: Per the opinion, only if the clerk "participated personally and substantially" in the matter as a law clerk. RPC 1.12(a) does not reach matters the clerk had nothing to do with.

Q: Does the clerk's disqualification, if any, automatically disqualify the new firm?

A: The Committee did not reach screening here because the clerk was not disqualified at all. It held neither the clerk nor the firm was precluded, citing the no-personal-and-substantial-participation facts.

Q: Why did the Committee mention young lawyers' careers?

A: It quoted Opinion 525 that young lawyers should not "unreasonably and unnecessarily have their careers severely stunted if ethics considerations remain intact and the public perception does not suffer."

Background and rules framework

The opinion applies NJ RPC 1.12(a) (Model Rule 1.12(a)), which addresses former judges, adjudicative officers, arbitrators, and law clerks to such persons. The operative test is whether the lawyer "participated personally and substantially" in the matter while serving in that capacity; if not, the successive-representation bar does not apply.

Citations and references

Rules of Professional Conduct:

• MR 1.12 / NJ RPC 1.12(a) (former judge, adjudicative officer, arbitrator, or law clerk)

Cases:

• Ross v. Canino, 93 N.J. 402 (1983), screening and successive representation

Other opinions cited:

• ACPE Opinion 525, 113 N.J.L.J. 365 (1984) (screening; careers of young lawyers)

See also

• NJ ACPE Op. 705: Former Government Attorneys and Screening
• 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/acp636-1.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. 1420, December 7, 1989

OPINION 636

Former Judicial Law Clerk Employed by Law Firm Representing Clients in Matters Pending During Clerkship

The inquirer served as law clerk to a judge who presided over various proceedings in three related litigated matters. However, inquirer asserts that he had nothing whatever to do with these matters, since the judge had another law clerk who had that responsibility. Further, the three matters have been reassigned to another judge.

Having completed the clerkship, inquirer is now associated with a firm which represents one of the parties in each of these matters, and asks whether he is precluded from working on these matters and, if so, whether the firm may continue to participate if a "Chinese Wall" is erected between the associate and the firm with respect to these matters. Cf. Opinion 525, 113 N.J.L.J. 365, n.1 (1984); Ross v. Canino, 93 N.J. 402, 410 (1983).

RPC 1.12(a) provides, with one exception not relevant here, that

...a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer, arbitrator, or law clerk to such a person, unless all parties to the proceeding consent after disclosure.

As we said in Opinion 525, supra, 113 N.J.L.J. 365:

Young lawyers should not unreasonably and unnecessarily have their careers severely stunted if ethics considerations remain intact and the public perception does not suffer.

Neither inquirer nor the firm is ethically precluded from continuing to represent the clients in these cases.