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                                         122 N.J.L.J. 1406
                                        December 1, 1988


                                            

ADVISORY COMMITTEE ON PROFESSIONAL ETHICS

Appointed by the Supreme Court of New Jersey

OPINION 621

Conflict of Interest:    
Aide to State Assemblyman

    The Inquirer has been offered an assignment to serve as Legislative Aide for a New Jersey State Assemblyman. The duties of this part-time position will include analysis of proposed legislation, periodic Assembly appearances, conferences with constituent lobbyists and public speaking engagements on behalf of the Assemblyman. Compensation for these services will be appropriated from the Assemblyman's payroll account. The funding for this account originates from the State Treasury. Three inquiries are presented:
        A)    Will the candidate's acceptance impose any ethical prohibitions upon his personal ability to practice, appear before and represent private clients before State agencies and/or county and/or municipal bodies?

        B)    Will the assignment preclude the firm from engaging in practice within the jurisdiction of the civil courts, State and Federal, and/or before Municipal, Compensation, or Administrative Law Courts, and/or State, County or Municipal authorities?

        C)    Assuming arguendo that formal appearances before State agencies would be proscribed, would correspondence and communications with these entities be permitted?

    The Inquirer's law firm makes appearances before official Boards including Municipal and County Planning Boards and Boards of Adjustment as well as State, Federal and Municipal Courts and the Compensation Court. They also make occasional appearances before State Agencies and the Office of Administrative Law.
    The Inquirer agrees that as a Legislative Aide he is a State Employee even though he is not acting in the status of an attorney. He is paid with State funds. He says he would not act as legal counsel to the Assembly or the Senate nor the State of New Jersey. The Legislative Conflicts of Interest Law, N.J.S.A. 52:13D-12(a), states that it is essential that public officers and employees should avoid conduct which is in violation of their public trust or which creates a justifiable impression among the public that such trust is being violated. Subsection (c) provides that the activities and conduct of public officials should not be unduly circumscribed.
    N.J.S.A. 52:13D-16 prohibits any special State officer or employee from appearing on behalf of any person or party, other than the State, before the particular office, bureau, board, council, commission, authority, agency, fund or system in which such special State Official or employee holds office or employment. Subsection (c) delineates the State boards and offices before which such State officers or employees may appear including courts of record "except where the state is an adverse party ...."
    N.J.S.A. 52:13D-23(e) is a Code of Ethics for officers and employees of a State Agency and Subsection (f) makes it applicable to members of the legislature. This section obviously applies to the Inquirer.

    While this opinion was under consideration by the Committee,
the Inquirer sought and obtained an opinion from the New Jersey State Legislature Joint Committee on Ethical Standards. Counsel for that committee opined that if the Inquirer accepted the position of Legislative Aide, he would be a special State Officer or Employee and be prohibited from representing, appearing for, or negotiating on behalf of private parties in matters pending before any entity in the Legislative Branch of government. The opinion goes on to say "that the Inquirer could appear before any agency in the Executive or Judicial branches of state government, any court of law or any legal governmental agency even where the state is an adverse party."
    It would seem that the opinion approaches the ethical problem from the point of view of a non-lawyer legislative employee, rather than a lawyer. We believe higher ethical standards are imposed upon lawyers who are state employees who as lawyers, act outside their state employment duties in dealing with other branches of the state government.
    Certainly the Inquirer here, while a state employee, cannot ethically, as a lawyer, bring an adverse action against the state, his employer. Yet the Legislative Ethics opinion says the Inquirer can represent private parties, "even where the State is an adverse party." This statement would appear to be in conflict with the provisions of N.J.S.A. 52:13D-16(c) which provides that no special State officer or employee shall appear for or negotiate on behalf of any person or party "other than the State" in connection with any proceeding before any court of record or as stated above, various delineated State agencies.
    However, we are of the opinion that the Inquirer and his law firm are not prohibited, except where the state is an adverse party, from appearing in State and Federal Courts, the Division of Workers Compensation, the Office of Administrative Law and county and municipal bodies or agencies. See also Opinion 371, 100 N.J.L.J. 545 (1977), where we discussed whether a part-time State employee in the Department of Law and Public Safety could represent private clients in Federal Civil Rights proceedings. RPC 1.11 also gives guidance in these matters.
    In all cases where the Inquirer and his law firm are prohibited from appearing before bodies or agencies, they are also prohibited from corresponding or communicating with these agencies.

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