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130 N.J.L.J. 659
February 24, 1992
1 N.J.L. 269
March 2, 1992
ADVISORY COMMITTEE ON PROFESSIONAL ETHICS
Appointed by the New Jersey Supreme Court
Conflict of Interest: Deputy Attorney
General Representing DEPE Accepting
Position with Law Firm that Represents
Private and Governmental Plaintiffs in
Declaratory Judgment Actions Against
Insurance Companies to Determine Coverage
in Environmental Matters
The Inquirer is a Deputy Attorney General presently
representing the Department of Environmental Protection and Energy
(DEPE). He has been offered a position with a law firm that
represents private and governmental plaintiffs in declaratory
judgment suits against insurance companies to determine coverage in
Inquirer states that the law firm does not represent any
client in any matter in which he or his staff have personally been
involved. He further states that neither the DEPE nor the Division
of Law is involved in any of these insurance actions and that the
law firm's clients in these actions have not taken positions which
are adverse to the State.
The law firm will not hire Inquirer if it will interfere with
its representation of existing clients, but it believes that it can
create a "Chinese Wall" to screen the Inquirer from any pending
matters as provided by RPC 1.11(b).
Inquirer points out that he did not participate "personally or
substantially" as a public officer in any matter in which the law
firm is involved. RPC 1.11(a). He further represents that he has
not "participated in, obtained confidential information of, [or]
had responsibility for any of the insurance declaratory judgment
actions in which the firm represents plaintiffs," and that the DEPE
has not been a party to any of those actions.
Inquirer admits that DEPE has brought cleanup actions
concerning some of the sites involved in some of the declaratory
judgment actions. He insists, however, that these are different
matters than those involved in the declaratory judgment suits.
There can be no doubt from the Inquirer's statement of facts
that he has been deeply involved in these environmental matters for
the state. He argues out that RPC 1.11(d) uses the term "matter"
in the limiting concept of a judicial proceeding and that while he
has participated in the cleanup proceedings, he has had no part in
the insurance declaratory judgment actions. We need not decide
whether his view of the rule is correct.
The use of the "Chinese Wall" concept to screen a former
government attorney entering private practice from any actions
pending in his new employer's office which are not adverse to the
State, in which the attorney is not privy to any confidential
information concerning the same, and where any knowledge obtained
will not be used in a way prejudicial to the rights of the State,
will permit his accepting the offer of private employment he seeks.
The criteria in such cases were set forth by the New Jersey Supreme
Court in Ross v. Canino, 93 N.J. 402 (1983). Discussion concerning
the employment of deputy attorneys general in the private sector
may be found in Opinion 339, 99 N.J.L.J. 601 (1976); Opinion 569,
116 N.J.L.J. 257 (1985), aff'd In re Petition for Review of Opinion
569 of the ACPE, 103 N.J. 325 (1986); and Opinion 614, 122 N.J.L.J.
194 (1988). See also Opinion 654, 129 N.J.L.J. 514 (1991).
We do not perceive from the extensive statement of facts filed
by the Inquirer that the information he obtained, while
comprehensive, represents any danger to the rights of the
government. It does not include anything of a confidential nature.
Cf. In re Onorevole, 103 N.J. 548 (1986).
We see this as a borderline situation where we must strike a
balance between the rights of the State and those of the Inquirer.
In doing so we are mindful that the Supreme Court, in Ross v.
Canino, supra, 93 N.J. 402, and In re Advisory Opinion 361, 77 N.J.
199 (1978), has endorsed the public policy of fostering recruitment
of competent attorneys who should not be denied private employment
after their governmental service unless it appears that the
information obtained in the governmental employment will be used
against the lawyer's former employer. To decide otherwise would be
to create a group of "professional pariahs" or "typhoid Marys." 94
Harv. L. Rev. at 1363-4.
We therefore hold that the Inquirer may accept the employment
offer made to him providing he is screened by a "Chinese Wall" from
any matters substantially relating to his state employment. RPC
We deem it outside the scope of our authority under R. 1:19-1
et seq. to decide inquiries which require us to interpret
substantive law or do not otherwise raise questions of legal
ethics. However, to further insulate the Inquirer from any
possible claims of impropriety, we suggest that he and his
prospective employer might consider the six month disqualification
period referred to by the Supreme Court in In the Matter of
Petition for Review of Opinion 569 of the ACPE, supra, 103 N.J.
325, 332-333. Although arising from and applied to a different set
of facts, application of the disqualification period here might
well be appropriate.
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