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                                             99 N.J.L.J. 433
                                            May 20, 1976


ADVISORY COMMITTEE ON PROFESSIONAL ETHICS
    

Appointed by the New Jersey Supreme Court

OPINION 329

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:

        A lawyer shall not accept private employment in a matter in which he had substantial responsibility while he was a public employee. (Emphasis added)See footnote 1 1

We think this rule applies with equal force to employment in the private sector.
    The law student who made inquiry points out that his connection with the Attorney General's office was one involving research on a part-time basis. He and a few of his colleagues (second-year students) were involved in a research project on the large anti-trust suit referred to above. His work is pure research. He and his colleagues had sought the employment to gain practical experience in order to make themselves more "marketable" upon their admission. He is now concerned lest his participation in this project will have precisely the opposite result. Since he had no "substantial responsibility" in connection with the anti-trust litigation, we see no reason why it should adversely affect his future association with any office which might represent any of the defendants in that litigation.
    We believe that employers can deal with this problem with a high degree of assurance, both on their part and that of the employee, if the following procedure is adopted:
    1. A prospective employer should obtain from his prospective employee (whether a law clerk, a recently admitted attorney, or any other attorney who may seek employment) a representation that, to the best of such individual's knowledge and belief, he had no substantial responsibility and received no confidential information during his former employment with respect to any pending adversarial matter in the office of his prospective employer.
    2. Upon receiving such representation, the individual may accept any proffered employment and the employer need not withdraw from the pending adversarial matter with the individual's former employer. If there are any pending adversarial matters between the two employers as to which the prospective employee has not had "substantial responsibility," the employee should be specifically excluded from any contact with the files in these matters, and even from any discussions concerning them, and he should not be made privy to his new employer's actions in the matter.
    3. In the event that the prospective employee has had substantial responsibility or has received confidential information while with a former employer concerning pending adversarial matters with the prospective employer, the law clerk, the newly admitted attorney, or other attorney seeking employment, shall not accept such employment unless the informed consent of the former employer and his client are obtained, as well as that of his new employer and the latter's client.
    It should be pointed out in connection with paragraph 3 above that consent from public bodies will probably be impossible to obtain. See Drinker, Legal Ethics 120 (1953), referring to former Canon 6, which forbids representation of convicting interests:
        The Canon does not sanction representation of conflicting interests in every case where such consent is given, but merely forbids it except in such cases. The American Bar Association has acquiesced in numerous decisions of its Ethics Committee construing the exception as not exclusive, and consent as unavailable where the public interest is involved. (Emphasis added)

    If the procedure herein delineated is followed, problems of any conflict involving a prospective employee should not arise, whether the latter comes from government service or from an association with another law firm or lawyer.

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Footnote: 1 1

See discussion of some of the problems herein referred to and particularly "substantial responsibility." American Bar Association, Committee on Professional Ethics, Opinion 342 (1975), 61 American Bar Association Journal 517 (April, 1976).

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