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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

OPINION 660

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 environmental matters.
    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 1.11.
    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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