100 N.J.L.J. 1051
November 10, 1977
Conflict of Interest
Former Deputy Attorney General;
Employment by Firm Opposing State
The inquirer presents the following inquiry: He is employed by the State of New Jersey as a Deputy Attorney General. Several years ago in his capacity as a Deputy Attorney General, he became involved in certain litigation annotated in the courts of this State and now pending in the U.S. Supreme Court. This suit is against the State of New Jersey. The plaintiffs in that litigation have been at all times represented by a law firm of this State. The inquirer, from the facts presented to us, had substantial involvement initially in the matter for a period of time, but has had no involvement on behalf of the State since approximately one year ago. He now has been offered a position as a salaried associate with the law firm which represents the plaintiffs in the litigation. The proposed employer law firm has represented that it will, under no circumstances, discuss or allow the inquirer's participation in the pending action in which the State is involved and that it will totally isolate and screen the inquirer from the matter. It further appears that the Attorney General has indicated that he will consent to such employment despite the continued pendency of the subject litigation, but has conditioned such consent on the determination of this Committee that he is empowered to do so.
It is our opinion that even if the Attorney General is empowered to give such consent, which we need not consider at this time, nevertheless, such consent would not dispose of the conflict of interest problem created by the employment because of the directive issued by former Chief Justice Joseph Weintraub in a "Notice to the Bar," 86 N.J.L.J. 713 (1963), which appears to be controlling. We quote:
Because of some matters called to its attention, the Supreme Court wishes to publicize its view of the responsibility of a member of the Bar when he is attorney for a municipality or other public agency and also represents private clients whose interests come before or are affected by it. In such circumstances the Supreme Court considers that the attorney has the affirmative ethical responsibility immediately and fully to disclose his conflict of interest, to withdraw completely from representing both the municipality or agency and the private client with respect to such matter, and to recommend to the municipality or agency that it retain independent counsel. Where the public interest is involved, disclosure alone is not sufficient since the attorney may not represent conflicting interests even with the consent of all concerned.
The litigation referred to in the inquirer's inquiry involves the public interest. The directive unequivocally prohibits the representation of conflicting interests even with the consent of all concerned.
In the case of In re A. and B., 44 N.J. 331, 333 (1965), the Court stated:
As to attorneys, DR 5-105(D) provides
that 'If a lawyer is required to decline
employment or to withdraw from employment
under DR 5-105, no partner or associate of his
or his firm may continue such employment." In
Opinion 329, 99 N.J.L.J. 433 (1976), this
Committee reviewed its Opinion 313, 98
N.J.L.J. 753 (1975). We then stated that
"[t]he essential limits factor in the
relationship is whether the prospective
employee had any 'substantial responsibility'
.. while with the former public employer If
so, he may not accept such employment," nor
may his firm continue to be involved in the
adversarial litigation with the state or any
of its agencies.
Employment of the inquirer by the firm representing plaintiffs in the subject litigation, during the pendency of the litigation, would cause that firm to come squarely within the prohibition of DR 5-105(D). The effect of such employment would result in the inquirer having represented both the plaintiffs and the defendant in the pending litigation which he could not under ordinary circumstances do, unless informed consent of all parties concerned was first obtained. In the instant situation, however, because the public interest is involved, such consent cannot be given by reason of the directive of the Supreme Court of this State in its "Notice to the Bar," supra. See also our Opinion 329, 99 N.J.L.J. 433 (1976); 339, 99 N.J.L.J. 601 (1976); and 344, 99 N.J.L.J. 705 (1976).
We, therefore, consider the employment of the inquirer by the law firm to be proscribed by the Supreme Court directive unless the firm withdraws from the case.