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