Does the state Conflicts of Interest Law (N.J.S.A. 52:13D-17) override RPC 1.11(c)'s screening allowance for a firm that hires a former government lawyer?

Plain-English summary

Opinion 705 addresses a direct conflict between a substantive state ethics statute and a Supreme Court Rule of Professional Conduct. The inquiry asks whether N.J.S.A. 52:13D-17, part of the general ethics law, which bars a law firm from representing a client when another firm member is personally conflicted because of his prior government work on the matter, must yield to RPC 1.11(c), which expressly allows such representation through screening and notification.

The Committee turns to the constitutional allocation of authority. Under Winberry v. Salisbury, Supreme Court rules governing the conduct of attorneys generally prevail over conflicting state statutes. In Knight v. Margate, the Court reaffirmed Winberry but, as a matter of comity, deferred to a legislative conflicts provision where there was no conflicting Supreme Court ethics rule; the Court stressed it retains overriding constitutional authority to fashion its own ethical requirements regardless of legislative action. The Committee also notes In re ACPE Opinion 621, where a more permissive statute was pitted against a more restrictive Committee opinion, and the Court struck down the Committee's per se rule without reaching comity.

Here the alignment is reversed: the statute is more restrictive and RPC 1.11(c) is more permissive. The Committee reads Winberry and Knight to mean the Court's rule should prevail, absent a decision by the Court to defer to the statute on comity grounds.

Critically, the Committee declines to resolve the question itself. It states it does not view itself as having the power to rule on questions of deference and comity; its role is to articulate the proper RPC analysis. It directs that the inquirer or other affected attorneys may seek final resolution of the apparent conflict between RPC 1.11(c) and N.J.S.A. 52:13D-17 by petitioning the Supreme Court for review under R. 1:19-8.

In practice

The opinion holds that, where N.J.S.A. 52:13D-17 conflicts with RPC 1.11(c), the reasoning of Winberry v. Salisbury and Knight v. Margate indicates the Supreme Court's rule of professional conduct (allowing screening and notification) should prevail over the more restrictive statute, absent a decision by the Court to defer to the statute on comity grounds. Per the opinion, the Committee does not view itself as having the power to decide questions of deference and comity, and affected attorneys may seek final resolution by petitioning the Supreme Court under R. 1:19-8. Because this opinion predates the most recent five years, verify the current Rules of Professional Conduct and the statute before relying on this analysis.

Common questions

Q: Can my firm screen a former government lawyer and still take a matter he worked on?

A: Per the opinion, RPC 1.11(c) allows screening and notification, and the Committee reads Winberry and Knight to mean the Court's rule should prevail over the stricter statute; but it stops short of a final answer and points to a Supreme Court petition.

Q: Does the state Conflicts of Interest Law (N.J.S.A. 52:13D-17) control instead?

A: The opinion notes the statute is more restrictive and would bar the firm's representation, but explains that Supreme Court rules governing attorney conduct generally prevail over conflicting statutes under Winberry, subject to the Court's discretion to defer on comity grounds.

Q: Who decides the conflict between the rule and the statute?

A: The opinion says the Committee does not have the power to rule on deference and comity; it directs inquirers and affected attorneys to petition the Supreme Court for review under R. 1:19-8.

Background and rules framework

The opinion interprets RPC 1.11(c) (screening and notification permitting a firm to represent a client despite a former-government lawyer's personal disqualification), the New Jersey analog to Model Rule 1.11, and its interplay with N.J.S.A. 52:13D-17. It applies the constitutional rule-versus-statute framework from Winberry v. Salisbury and Knight v. Margate.

Citations and references

Rules of Professional Conduct:

• MR 1.11 / NJ RPC 1.11(c) (former government lawyer; screening and notification)

Statutes:

• N.J.S.A. 52:13D-17 (Conflicts of Interest Law; post-employment restriction imputed to the firm)

Court rules:

• N.J. Court Rule 1:19-8 (petition to the Supreme Court for review of an ACPE determination)

Cases:

• Winberry v. Salisbury, 5 N.J. 240, cert. denied 340 U.S. 877 (1950), Supreme Court rules prevail over conflicting statutes
• Knight v. Margate, 86 N.J. 374 (1981), comity deference where no conflicting ethics rule exists
• In re Advisory Committee on Professional Ethics Opinion 621, 128 N.J. 577 (1992), permissive statute versus restrictive ACPE opinion

See also

• NJ ACPE Op. 726: Government Lawyer Conflicts
• AL Ethics Op. 2000-03: Former City Attorney Conflicts
• AL Ethics Op. 1994-14: Ex-Official vs. Former Agency

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2006/acp705-1.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.

184 N.J.L.J. 390

May 8, 2006

15 N.J.L. 1045

May 15, 2006

Advisory Committee on Professional Ethics

Appointed by the Supreme Court of New Jersey

Opinion 705

Advisory Committee on Professional Ethics

Former Government Attorneys and State Conflict of Interest Law Post-Employment Restrictions

You have inquired whether a provision of the general ethics law, N.J.S.A. 52:13D-17, which prohibits a law firm from representing a client when another member of the firm may be personally conflicted due to his previous involvement with the matter when he formerly was a government employee, must yield to the provisions of RPC 1.11(c), which expressly allows such representation through the use of screening and notification.

Your inquiry poses a situation where there is a direct conflict between a substantive state ethics statute and a Supreme Court Rule of Professional Conduct. Based on the reasoning in Winberry v. Salisbury, 5 N.J. 240 (1950), cert. denied 340 U.S. 877 (1950), it would appear that Supreme Court rules governing the conduct of attorneys should prevail over state statutes in these circumstances.

Similarly, in Knight v. Margate, 86 N.J. 374 (1981), the Supreme Court considered the validity of 1980 amendments to the Conflicts of Interest Law prohibiting judges from being involved with casinos. The Court reaffirmed the Winberry principle, but then as a matter of comity, decided to yield to the Legislature's action. In this case, there was no conflicting Supreme Court ethics rule. The Court noted that the statute acted in a fashion that does not interfere with the Supreme Court's regulation of the judiciary and the legal profession. Id. at 394-95. The Court noted that it has the overriding constitutional authority to adopt and fashion its own regulatory and ethical requirements for the practicing bar at any time it becomes appropriate to do so regardless of the Legislature's action. Id. at 394.

The opposite pattern was considered In the Matter of Advisory Committee on Professional Ethics Opinion 621, 128 N.J. 577 (1992). That case involved activities of an attorney who was a part-time legislative aide, and pitted a more permissive state statute and agency advisory interpretation against a more restrictive ethics opinion issued by this Committee. Because the Court found the ACPE opinion unduly restrictive, and struck down its per se rule, it concluded it did not have to reach the issue of comity which would have been posed by a direct clash between a Court-adopted ethics rule and a state statute.

In this inquiry, the statute is more restrictive and the Court's ethics rule in RPC 1.11(c) is more liberal, allowing attorneys to proceed in proper cases by screening and notification. Our reading of Winberry and Knight is that the Court's ethics rule should prevail in this case, absent a decision by the Court to defer to the statute under principles of comity. This Committee, however, does not view itself as having the power to rule on such questions of deference and comity. Its role is to articulate the proper analysis of the inquiry under the Rules of Professional Conduct. If the inquirer or other affected attorneys seek final resolution of the apparent conflict between RPC 1.11(c) and N.J.S.A. 52:13D-17, they may do so by petitioning the Supreme Court for review pursuant to R. 1:19-8.