99 N.J.L.J. 433
May 20, 1976
Conflicts of Interest
Attorney's Employment by
Formerly Adversarial Employer
The Supreme Court of New Jersey has been requested by several members of the bar to consider the adoption of a rule clarifying the limitation on employment in private practice of lawyers who leave the employment of a state agency and, in particular, the office of the Attorney General. While the question is not raised by the inquiry, it would also apply to persons who leave federal and county agencies.
An inquiry has also been received from a law student who is doing part-time research work for the office of the Attorney General as to how that engagement will affect his future employment with a law firm or lawyer if, at the time he seeks employment, that law firm or lawyer is engaged in adversarial litigation with the State or any of its agencies.
Both inquiries make reference to Opinion 313 of this Committee, 98 N.J.L.J. 753 (1975), and point out that many of the leading law firms and lawyers (hereinafter collectively referred to
as "employers") in this State represent clients who are engaged in litigation with the State or some of its agencies. The inquirers believe that the effect of Opinion 313 is to bar them from employment in such offices. The Committee is of the opinion that the holding in Opinion 313 does not impel that result.
That opinion must be considered in the light of the facts therein dealt with, where a clear conflict of interest arose because the inquirer had been employed by a law firm which represented a plaintiff in an action and he had performed extensive services in such matter. He then became employed by the law firm which was defending the same action and wanted to know whether his present employer could continue representation of the defendant if he, the inquirer, completely avoided further involvement in the case. The opinion pointed out that there was no way in which, even if he had no connection with the case in his new employment, the appearance of conflict could be eliminated, since admittedly he had played an important role in the case with his former employer. We
find no reason to change our views on these facts.
Although law students and non-admitted law clerks are not within the jurisdiction of this Committee, since R. 1:19-2 limits our authority to inquiries from "the state bar association, from any county or local bar association, or from any member of the New Jersey bar, concerning proper conduct for a member of the legal profession," and the inquiry from the law student could properly be rejected, we believe it appropriate to deal with the subject because it will give guidance to future employment of law students.
The inquiries from two employers point out that they, together with many other employers, are presently engaged on behalf of defendants in an anti-trust suit in which the State of New Jersey is plaintiff and there are over 200 defendants. They point out that they receive requests for employment from individuals who are presently employed by the Attorney General's office and that, if mere employment in that office is going to preclude their considering such individuals because the employers are presently representing defendants in the litigation referred to, it poses a serious problem, not only for them but also for the prospective employees. Further, the employers point out that, if employment in that office is going to preclude future employment in the private sector of the legal profession, young lawyers will be very reluctant to work for the State.
We do not think that the problem is quite as serious as the inquiries would seem to indicate. The mere fact that a law student is engaged in a research project for the Attorney General's office or some other state agency, or that a lawyer may be similarly employed and then seek employment with an employer engaged in adversarial litigation with the State or any of its agencies, does not per se preclude employment of these individuals. The essential
limiting factor in the relationship is whether the prospective employee had any "substantial responsibility" for the adversarial litigation while with the former public employer. If so, he may not accept such employment, or if he does, then the employer must withdraw from the litigation for which the new employee had such
responsibility. DR 9-101(B.) says: