124 N.J.L.J. 1450
December 14, 1989
SUPPLEMENT TO OPINION 621
Conflict of Interest:
Aide to State Assemblyman
Following the publication of Opinion 621, 122 N.J.L.J. 1406 (1988), the inquirer asked the Committee to reconsider the same and stay its effect pending reconsideration. The Committee assented to this request. The Committee then received separate requests for reconsideration from the Office of the Attorney General and Office of Legislative Counsel, dated January 17, 1989 and January 18, 1989 respectively. Both of these Offices stated that our conclusions in Opinion 621 not only were incorrect, but also that the Committee had exceeded the jurisdiction given to it under R. 1:19 in that we were interpreting the provisions of a statute, N.J.S.A. 52:13D-12 et seq., generally, and Section 16(c) in particular.
Neither objection is well taken. The Committee is not attempting to construe the statute but only to point out the regulatory and restrictive provisions of that law with respect to the limitations on the rights of state employees, who are lawyers, to undertake matters adverse to the State while employed by the State. The legislature cannot alter ethical standards imposed upon all lawyers by the Supreme Court of New Jersey.
The statute in question does not distinguish between State employees who are lawyers and other such employees. Our conclusion in Opinion 621, supra, 122 N.J.L.J. 1406, was intended only to hold that the activities of lawyers who are state employees cannot include taking claims against their employer, the State of New Jersey. We were careful to point out that the opinion did not prohibit the appearance of any such state lawyer employees before the State and Federal Courts, the Division of Workmens' Compensation, the Office of Administrative Law, county and municipal bodies or agencies and other state agencies referred to in N.J.S.A. 52:13D-16(c). In Opinion 250, 96 N.J.L.J. 234 (1973), we discussed the situation where a state legislator was a member of a professional legal corporation and held that the attorney holding public office and his corporation should avoid all conduct which might lead a layman to conclude that the attorney or his corporation was utilizing his public position for personal interest and that neither he nor his fellow shareholders could appear on behalf of clients before agencies of the State while the shareholder was a legislator.
We disagree with the opinion of the Office of Legislative Services that "the Joint Legislative Committee on Ethical Standards is statutorily the appropriate body to interpret and apply the provisions of the Conflicts of Law for a legislative aide." This is, of course, correct as to laymen but not lawyers.
The Supreme Court of New Jersey has consistently held that it is the appropriate body to determine the ethical standards of attorneys and their conduct. See In re Boyle, 18 N.J. 415 (1955) and In re Greenberg, 21 N.J. 213 (1956). The Court's exclusive jurisdiction in this area is found in the New Jersey Constitution of 1947 which provides in pertinent part: "The Supreme Court shall have jurisdiction over the admissions to the practice of law and the discipline of the attorneys admitted." N.J. Const. (1947), Art. VI, §II, par. 3. See In re Genser, 15 N.J. 600 (1954). This cannot be changed by the Legislature. A lawyer who is also a public employee remains subject to the ethical standards promulgated by the Supreme Court regardless of the capacity in which he serves the public.
In its letter requesting reconsideration of Opinion 621, supra, 122 N.J.L.J. 1406, the Office of Legislative Services stated:
Part-time officers and employees, classified as special State officers or employees, often receive little or no renumeration from the State for their services. In many instances, these individuals are willing to sacrifice their time and energy for nothing more than a sense of civic involvement and a desire to make government more responsive to the needs of the people. While preservation of the public trust may demand certain restrictions on such individuals, the Conflicts Law recognized that these restrictions need not be as encompassing as those imposed on full-time employees. Consequently, the Legislative Code of Ethics prohibits an attorney who is a full-time officer or employee from representing a party in court where the State is an ad verse party. Section 3:5a of the Code. Such a restriction was determined to be appropriate where an individual devoted the predominant part of his employment to State service and was compensated accordingly. Legislative aides and legislators, who serve the State only part-time, are not so restricted.
However, if the conduct restricted is inappropriate for a full-time employee, how can it be appropriate for a part-time employee? Legal ethics have never been decided on the basis of whether the conduct in question was one for which the lawyer was being compensated.
The statute in question, N.J.S.A. 52:13D-12 et seq., was recently discussed in In re Exec. Com'n on Ethical Stand., 116 N.J. 216 (1989), a Supreme Court decision reversing by a four to three vote the decision of the Appellate Division reported at 222 N.J. Super. 482 (App. Div. 1988). The Appellate Division had found that a group of law professors employed by Rutgers, the State University, were engaged in a conflict situation by appearing before a State agency because they were State employees and subject to the Conflict of Interests law. Therefore, the Appellate Division reasoned, they could not represent a private party before a State agency under N.J.S.A. 52:13D-12 et seq.
The Supreme Court reversed, not because of the finding that State employees were prevented from representing private parties before State agencies, but because the teaching faculty members were not employees of the State for all purposes. After holding that a Rutgers University professor was not to be regarded as a State employee for the purpose of a conflicts-of-interest law, the Court said:
In so holding, we do no more than resolve the question before us. We draw the line at the outer boundaries of legislative intent. We do not hold that a State university professor who personally seeks or receives fees in the course of legal representation before State agencies of government would or would not be a State employee. There might be circumstances in which an appearance of impropriety would be present. However, for the most part such representation will be by attorneys-at-law, who would be constrained by ethical restrictions on their conduct. (citations omitted).
In re Exec. Com'n on Ethical Stand., supra, 116 N.J. at 229. The Court, therefore, recognized that there were restrictions upon state lawyer employees.
It is well-established that "all fiduciaries are held to a duty of fairness, good faith and fidelity, but an attorney is held to an even greater degree of responsibility in these matters than is required of all others." In re Honig, 10 N.J. 74, 78 (1952). The same reasoning is applicable to the instant inquiry. Consequently, we are of the opinion that our conclusions in Opinion 621, supra, 122 N.J.L.J. 1406, do not require modification.