116 N.J.L.J. 257
August 22, 1985
Affirmed, In re
Petition for Review
of Opinion 569 of the ACPE, 103 N.J. 325 (1986)
Conflict of Interest -
Former Deputy Attorney General
Representing License Before Professional
Board for which He Formerly Served
The inquirer is a former deputy attorney general who was assigned to represent various professional and occupational licensing boards of the Division of Consumer Affairs during his tenure with the State. Now in private practice, he asks whether he may properly represent a licensee who faces possible disciplinary action by a licensing board as the result of an investigation which began while the inquirer was employed by the State but of which he had no knowledge. The inquirer stresses that he had no contact whatever with the investigation, informing us that such matters are handled by the Enforcement Bureau of the Division of Consumer Affairs, and not by the Division of Law and Public Safety. We are told that while a deputy attorney general assigned to represent a particular board might or might not participate in a given investigation as conditions warrant, this investigation was completely outside the scope of the inquirer's participation, knowledge and responsibility. The sole nexus of concern is the fact that the investigation originated while the inquirer was a deputy attorney general representing several of the professional boards.
Although the inquiry does not so specify, we shall assume that the inquirer at some point represented the board before which the disciplinary proceeding is pending even though he was unaware of this investigation, a circumstance he says is not unusual. Because the inquirer had no actual or supervisory involvement whatever with the investigation which he now wishes to contest as a private attorney, the focus here is upon the appearance of impropriety. R.P.C. 1.11(b). In In Re Advisory Opinion No. 361, 77 N.J. 199 (1978), the New Jersey Supreme Court had occasion to review a ruling of this Committee, Opinion 361, that the appearance of impropriety precludes a firm from representing a defendant who was investigated or indicted during the time an associate of the firm was on the staff of the county prosecutor concerned. Relying in part on In re Biederman, 63 N.J. 396 (1973), we said that "the fact the assistant prosecutor had no connection whatever with the investigation or with the preparation of the ease is immaterial." Opinion 361, 100 N.J.L.J. 1 (1977). On review the Supreme Court reconsidered the wording of its opinion in Biederman, saying:
We believe that the language that disqualification follows 'even though the attorney had played no part in the investigation and prosecution' or because the ease 'had originated while he was connected with the office' is somewhat over-broad. Of course, actual responsibility for or participation in any aspect of a proceeding is, as stated above, disqualifying. And where the attorney because of his or her status becomes aware of any information or material on a matter pending in the prosecutor's office, then he or she should refrain from related private employment, even though no other responsibility had existed. [citation omitted]. But where each of these factors is missing, then a conflict of interest does not exist. 77 N.J. at 205.
The Court went on to hold that in order to avoid the appearance of impropriety, a former assistant prosecutor not disqualified by reason of his involvement in a particular matter nevertheless should not appear in any criminal matter in the county where he served for a period of six months from the date of termination of his public employment, a temporary disqualification personal to him and not applicable to others in his firm. 77 N.J. at 206. Our Opinion 361 was modified accordingly.
The situation here is analogous. On the authority of In re Advisory Opinion No. 361, supra, we believe that an assistant deputy attorney general no less than an assistant county prosecutor should be allowed to represent a private client in connection with an investigation which began while the attorney was in government service but with which he had no connection whatever, subject to the same six month period of personal disqualification. Accordingly, and since the inquirer has now been in private practice for over six months, we hold that the proposed representation would be proper.