Rutgers School of Law, OAL case ACPE614

122 N.J.L.J. 194
July 21, 1988

ADVISORY COMMITTEE ON PROFESSIONAL ETHICS

Appointed by the Supreme Court of New Jersey

OPINION 614

Successive Government and
Private Employment by
Deputy Attorney General

    Attorney X is a member of the Attorney General's staff having supervisory and direct responsibilities for the legal work done for a state agency. He wishes to become associated with a law firm which, on a regular basis and currently, has legal matters pending before that State agency, matters which are within the overall supervisory responsibility of Attorney X.
    While the inquiry is couched in terms of the propriety of the prospective association, we feel that the more appropriate question is what matters, if any, may the law firm and/or Attorney X continue to handle before the agency after Attorney X becomes associated with the firm. The association will be proper if the law firm withdraws from matters improper for it to handle and takes other actions as set forth below.
    RPC 1.11(a) and (b) sets forth the guidelines concerning what a lawyer and his firm may and may not do in private practice with respect to matters relating to the lawyer's former employment as a public officer or employee. These rules appear to codify and, in turn, are clarified by pronouncements of the Supreme Court on the subject such as In re Advisory Opinion on Professional Ethics No. 361, 77 N.J. 199 (1978) and Ross v. Canino, 93 N.J. 402 (1983), and the explanatory comments to RPC 1.11.
    These authorities confirm that RPC 1.11(a) and (b) are more restrictive than the general rule as to all former government employees including lawyers as contained in N.J.S. 52:13D-17 and are also more restrictive than the similar paragraphs of the ABA Model Rule 1.11. They, nonetheless, are intended to balance the competing interests relating to the recruitment and retention of government lawyers. See In re Petition for Review of Opinion 569, 103 N.J. 325 (1986), and the need to maintain public confidence in the integrity of the bar and the administration of justice. Ross, supra, at 409.
    As we interpret that rule in the light of the authorities cited, if the former government lawyer is involved in a matter falling within the definition set forth in RPC 1.11(a), both he and any firm with which he is associated are barred from representing a private client in connection with that matter.
    But the language of RPC 1.11(a) is subject to some interpretation. For example, for sub-part 1 of RPC 1.11(a) to apply, the attorney's personal participation in the matter in question must be substantial. In Ross v. Canino, supra, advice by a subordinate to the former attorney general that a subpoena had been served on a witness in the matter was not considered "substantial" participation by the former attorney general. On the other hand, we believe that if the attorney had any occasion to review the file or discuss it for any purpose including the assessment or consideration of its substance or weight for the purpose of assigning it to subordinates - that would be substantial participation. See e.g., Dewey v. R. J. Reynolds Tobacco Company, 109 N.J. 201, 216, (1988) outlining some of the factors the court considered in determining whether an attorney had in fact "represented" a client.
    The criterion in sub-part 2 of RPC 1.11(a), i.e., lack of knowledge of confidential information relating to the matter is clear. If this is present in any degree, disqualification is mandated.
    The criterion in sub-part 3 of RPC 1.11(a), i.e., "substantial responsibility" has been interpreted in both In re Advisory Opinion 361, supra, and in Ross v. Canino, supra, as not including bare "overall" or "ultimate" responsibility. It must be something more. But we believe that the active exercise of responsibility for the matter such as making a decision with respect to a matter of substance will qualify as "substantial responsibility." A decision on a matter such as its assignment to a subordinate solely on a rotational basis would not, however, qualify as the exercise of substantial responsibility.
    RPC 1.11(b), on the other hand, is a much broader rule disqualifying the lawyer only but not his firm from representing a private client in connection with a matter "relating to the lawyer's former employment."

    The firm may continue to represent clients with respect to such matters not covered by RPC 1.11(a) provided the lawyer in question is insulated from participation or contact with the file in accordance with the rule. The lawyer himself, however, is disqualified from appearing and should be insulated from any matter "that relates to" his former employment. This would include matters over which he had any authority, responsibility, information, or contact no matter how slight. In fact, we believe that the lawyer should abstain from any appearance before the agency which he formerly served for the six month period mentioned in In re Advisory Opinion 361, supra, and In re Petition for Review of Opinion 569, supra.
    As to the three specific pending matters outlined in the presentation on behalf of Attorney X by his attorney and the Attorney General, the Committee has reached the following conclusions. In the first two cases, we assume the correctness of the Attorney General's statement that Attorney X discussed both cases with the attorneys handling them with respect to whether consolidation might be appropriate in light of a substantive matter common to both. In the third matter, a memorandum recommending a settlement (which did not occur) and setting forth the factual and legal status of the case was submitted and presumably reviewed by the attorney.
    In all three cases, we believe that such facts if true demonstrate substantial responsibility, participation and probable

receipt of confidential information under RPC 1.11(a). This disqualifies both Attorney X and the law firm with which he becomes associated from continuing to represent the law firm's existing client against the agency in those three cases.
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