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107 N.J.L.J. 1
January 1, 1981
ADVISORY COMMITTEE ON PROFESSIONAL ETHICS
Appointed by the New Jersey Supreme Court
OPINION 467
Conflict of Interest - DR 9-101, DR 5-105(D)
Public Agency Attorney Transferring to
Accepting Position in another Public Agency
A member of the Attorney General's staff seeks to accept a
position in the Department of Public Advocate, specifically its
Office of Advocacy for the Developmentally Disabled. His duties in
the Attorney General's office included participation in three
matters in which the Department of Public Advocate through its
Division of Public Interest Advocacy was either a possible party,
a party, or amicus curiae. The new position is in a different
division of that department, headed by a different individual; its
offices are in a building different from that of the Division of
Public Interest Advocacy. The Department of Public Advocate
exercises a policy of screening its lawyers from any direct or
indirect participation in matters which they may have worked on
during prior employment. Our opinions have considered situations
where an attorney in public employment seeks to affiliate with a
private firm which is litigating for private clients in opposition
to that attorney's public employer. DR 9-101(B) provides:
A lawyer shall not accept private employment in a
matter in which he had substantial responsibility while
he was a public employee.
In our Opinion 381, l00 N.J.L.J. 1051 (1977), we held that DR
9-101(B) prevented a deputy attorney general, substantially
involved in a pending suit, from accepting employment with the
private firm active in that litigation even though the private firm
represented that it would screen the deputy attorney general from
all participation in that case. The directive "Notice to the Bar",
86 N.J.L.J. 713 (1963), was cited as controlling. And see Opinions
388, 101 N.J.L.J. 120 (1978), 344, 99 N.J.L.J. 705 (1976), 339, 99
N.J.L.J. 601 (1976), 329, 99 N.J.L.J. 433 (1976) and 29, 87
N.J.L.J. 106 (1964). In that case, DR 5-105(D) applied to preclude
the new employment while the partners and associates of the new
firm continued in the litigation against the State.
In our Opinion 29, supra, we held that an attorney who was
counsel to two different public agencies should not negotiate a
contract between them. In doing so we extended the application of
DR 9-101 and the above "Notice to the Bar" to matters in which two
public agencies are concerned.
However the Office of Attorney General and the Department of
Public Advocate are together seeking the enforcement of law and the
protection of the public interest. Though these officers may take
opposing positions in certain controversies they have a common
goal, the advancement of good government in all its economic and
social components.
DR 9-101 is derived from Canon 9: "A Lawyer should avoid even
the Appearance of Professional Impropriety." This precept is the
policy consideration behind that rule. It is raised when it appears
that an attorney is "switching sides" for personal benefit. We
invoke it where there is an adequate basis for a belief by members
of the public reasonably familiar with governmental affairs that
these relationships create a high risk of impropriety. Perillo and
Ramer v. Advisory Committee on Professional Ethics - Opinion 423,
103 N.J. 481 (1980).
In applying this policy to our inquiry we conclude that the
separation of the two divisions of the Public Advocate in location,
structure and supervision must be taken into account; and that a
screening process not accepted in Opinion 381, supra, will remove
the "switching sides" problem since the two employers are public
agencies. We stress the absolute need to isolate the employee in
his new job £rom any contact, direct or indirect with the
litigation in which he had substantial responsibility during his
prior employment. Under these facts there is no risk that the
public may view the employment change as creating a high risk of
impropriety. Testing this inquiry by these considerations we
approve the transfer. In coming to this conclusion we are mindful
of the need for encouraging government attorneys to stay in the
public service. See American Bar Association Committee on Ethics
and Professional Responsibility Formal Opinion 342, note 18, at
page 6 (November 24, 1975).
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