Rutgers School of Law, OAL case ACPE379

100 N.J.L.J. 1029
November 10, 1972

ADVISORY COMMITTEE ON PROFESSIONAL ETHICS

Appointed by the New Jersey Supreme Court

OPINION 379

Conflict of Interest - Former Legal
Official Challenging Rules He Had Helped Draft

The inquirer, while employed as a deputy attorney general was assigned to advise the Department of Environmental Protection. In such capacity, he advised and assisted the department in the drafting of rules and regulations under the Coastal Areas Facilities Review Act, N.J.S.A. 13:19-1, et seq. He left the Attorney General's office in January 1976, and thereupon became employed by a law firm which had represented an association interested in such rules and regulations. This firm, on behalf of such association, had made comments to the Department of Environmental Protection on the proposed rules and regulations, both before the inquirer left the Attorney General's office and thereafter. The rules were first published in April 1976, and were eventually adopted in April 1977. The inquirer now asks whether he may represent the association in connection with a notice of appeal challenging those rules and regulations. The answer to the specific inquiry is that he should not. DR 9:101(B) provides:
(B) "A lawyer shall not accept private employment in a matter in which he had substantial responsibility while he was a public employee."

The inquirer argues that the word "matter" in this rule relates solely to an adversarial matter. It is clear, however, and has been clear under the former Canon of Ethics, Canon 36, that "matters" encompassed within that rule include non-adversarial matters with which the attorney dealt while he held public office. For example, ABA Comm. on Professional Ethics and Grievances, Opinion 26 (1930) deals with a lawyer previously serving as governor of a state who was thereafter privately engaged to attack legislation becoming law while he was in office. While the committee held that such action was not unethical, because the governor had not been employed in public office as a lawyer, it is clear from the opinion that the prohibition would apply to an attorney who, while in public employ, had assisted in drafting the legislation in question. Similarly in Formal Opinion 37 (1931) the ABA held that an attorney who had been a publicly employed assistant chief title examiner, could not represent a party in a suit concerning that title even 10 years thereafter. The opinion went on to state that when the attorney had been informed in the midst of a trial, even 10 years later, of his previous connection with the title, it was his duty to withdraw from the case immediately. See, also, ABA Comm. on Professional Ethics and Grievances, Opinions 39 (1931), 134 (1935) and 135 (1935). We hold that the facts of this case require the inquirer to withdraw from his pending representation of the association.
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