Rutgers School of Law, OAL case ACPE371

100 N.J.L.J. 545
June 23, 1977

ADVISORY COMMITTEE ON PROFESSIONAL ETHICS

Appointed by the New Jersey Supreme Court

OPINION 371

Conflict of Interest
State Civil Rights Examiner
in Federal Civil Rights Practice

    The inquirer is a part-time hearing examiner in the New Jersey Division of Civil Rights, which is in the Department of Law and Public Safety of the State. He was appointed by the Attorney General pursuant to N.J.S.A. 10:5-8(1) to preside at and decide administrative hearings in the Division on Civil Rights under the Law Against Discrimination, N.J.S.A. 10:5-1 et seq. He states that his first and only involvement with these discrimination cases is after there has been an investigation, a finding of probable cause and after there has been a breakdown of conciliation in the Division. He is then assigned on a per diem basis to preside at the contested public hearing (generally no more than a few days per month) and to render recommended findings of fact and conclusions of law to the director, after which his involvement in the case terminates.
    He states that as a hearing examiner he is a "state employee" within the meaning of New Jersey Conflicts of Interest Law, N.J.S.A. 52:13D-12 et seq., and is thus prohibited from appearing before certain state agencies in accordance with its sanctions. He inquires whether or not he may, as a private attorney, represent private plaintiffs and defendants in federal civil rights proceedings pursuant to Title VII of the Federal Civil Rights Act of 1964, 42 U.S.C.A. 2000(e)-2 et seq. Under that statute, complainants file complaints with the United States Equal Employment Opportunity Commotion. The Commission first defers a number of these cases to the Division on Civil Rights pursuant to the provisions of 42 U.S.C.A. 2000(e)-5(d). The E.E.O.C. notifies the Division of such cases and affords the Division a period of not less than 60 days to act on the complaint. The Division may either complete such cases as it would any other case before it or return the case to the E.E.O.C. for disposition there. If the E.E.O.C. then proceeds to make a finding of probable cause and if conciliation fails, the E.E.O.C. then issues a right to sue letter to the complainant, pursuant to which he may institute a civil action in the United States District Court pursuant to Title VII. All such cases would appear procedurally to be ones in which the Division on Civil Rights upon deferral never accepted jurisdiction. His inquiries are as follows:
    (1) May he represent private parties in the United States courts in civil actions under Title VII or in administrative proceedings before the E.E.O.C. in cases which were never deferred to the New Jersey Division on Civil Rights or in which the E.E.O.C. has decided not to defer to the Division on Civil Rights?
    (2) May he represent private parties in the United States courts in civil actions under Title VII or before the E.E.O.C. in cases which were deferred to the Division but over which the Division never asserted any jurisdiction?
    First we observe that under the supremacy clause of the federal Constitution and the constitutional power of the federal government to control proceedings in its own courts, Congress and the Department of Justice have the power to regulate proceedings before the Equal Employment Opportunity Commission and before the United States District Court. For diverse reasons, the federal tribunals are considering enacting their own standards for admission and competence to practice before said tribunals. Cf. Report of Judicial Conference of the United States, 63 A.B.A.J. 475 (1977).
    The issue in this inquiry is not whether the attorney may appear before the federal tribunal but rather whether permitting him to practice under the circumstances violates the canons of ethical standards regulating the conduct of New Jersey attorneys.
    We have generally held that under normal procedures, if the two tribunals operate as distinct and separate entities, neither having any right to interfere with the other, then an attorney may maintain a relationship with one governmental entity while practicing or appearing before another governmental entity. Opinion 44, 87 N.J.L.J. 297 (1964); see Botkin v. Westwood, 52 N.J. Super. 416 (App. Div. 1958). It has thus been held, for example, that an attorney for an incorporated fire district located within the territorial confines of a municipality is not barred from representing parties before the various boards of the municipality where the district is located. Opinion 292, 97 N.J.L.J. 809 (1974). In Opinion 229, 95 N.J.L.J. 81 (1972), we also held that a county counsel is not precluded from representing private parties before municipal agencies within the county confines except in cases where the county or its agencies is or may be a party to the proceedings.
    In all such cases, however, a note of caution has been sounded that there may arise a conflict even under the governmental setups outlined. Particularly do we find this so in the subject cases which have been referred to the state Division on Civil Rights for action and over which the State has declined to exercise its jurisdiction.
    In Opinion 276, 96 N.J.L.J. 1461 (1973), this Committee held that a former assistant prosecutor was precluded from representing a party who was under investigation by the State Commission of Investigation at a time when the inquirer was an assistant prosecutor. This was so even though the inquirer "had no connection with or knowledge of the file." The rationale of the opinion is the unacceptable appearance of possible impropriety to the general public. Cf. Opinion 340, 99 N.J.L.J. 610, (1976), barring representation on criminal appeal by a firm with which a former assistant prosecutor has become associated, and Opinion 339, 99 N.J.L.J. 601 (1976), precluding a former deputy attorney general involved in a land damage case from continuing to be associated with a firm representing a landowner whose case was investigated by the deputy.

    Since no specific rule or statute proscribes the conduct, we must look to the general principles regulating the conduct of attorneys to determine whether there is any ethical question presented. We have stated on frequent occasions the fundamental principle that governs such questions, whether there is appearance of conflict to the lay public, Opinion 265, 96 N.J.L.J. 1253 (1973). That principle pervades the opinion of our Supreme Court, State v. Galati, 64 N.J. 572 (1974), holding that a P.B.A. attorney may not defend a party when an officer of the local will be testifying for the State. The Court said, at pp. 576-577:
        in matters of ethics and professional probity, the cause and effect impact upon the public consciousness is almost, perhaps quite, as important as the actual fact. Cf. Disciplinary Rule 9-101, exhorting the lawyer to avoid "even the appearance of impropriety." So also, in In re Spitalnick, 63 N.J. 429, 431, 433 (1973), in upholding "the fundamental principle of disinterested justice which is the bulwark of our judicial system," our Court asserted that "a community without certainty in the true administration of justice is a community without justice.

        This Court held in State v. Deutsch, 34 N.J. 190, 206 (1961), that "it is vital that justice be administered not only with a balance that is clear and true but also with such eminently fair procedures that the litigants and the public will always have confidence that it is being so administered," quoting the words of Justice Frankurter in Offutt v. United States, 348 U.S. 11, 14, 7 S.Ct. 11, 13, 99 L. Ed. 11, 16 (1954): "justice must satisfy the appearance of justice."

        In a free democracy the administration of justice rests very largely not only on Constitution and laws, but upon public confidence in its integrity and impartiality in execution."

The Court in Galati found that the quasi-public status of the P.B.A. attorney was bound to incur public suspicion that the attorney could trade on his official connections.
    Judged by those standards we find that it could be reasonably concluded that an attorney was trading on his official connections in cases which had been investigated by the civil rights agency of which he was a public employee. We cannot state, however, that it would be unethical for him to appear before the federal tribunals
in cases over which the state Civil Rights Division had not exercised any jurisdiction although we express the note of caution that there should be no circumstances under which it can be inferred that the inquirer has taken advantage of confidential information in any cases never presented to the State Division.
    He further inquires whether the same principles would apply to cases under Title VII of the Federal Fair Housing Act of 1968, 42
U.S.C.A. 3600, et seq., the Federal Equal Pay Act of 1963, 29 U.S.C.A. §201, et seq.; the Federal Age Discrimination and Employment Act of 1963, 29 U.S.C.A. §621, et seq., the procedural provisions of which are similar to those of Title VII.
    Our answer is that the same principles are applicable in the case here presented.

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