92 N.J.L.J. 209
April 3, 1969
Conflict of Interest
Former Judge of Workmen's Compensation
This inquiry is submitted by an attorney actively
participating in the insurance carrier's defense of a workmen's
compensation claim for an injury involving a cardiovascular
episode. The records disclose that three years prior to the present
claim, the attorney as judge of workmen's compensation, heard and
decided an earlier claim in favor of the present claimant for an
injury involving the heart. The inquiry states that the merits of
the earlier claim are no longer pertinent and seeks an advisory
opinion as to whether the attorney may continue his representation
of the carrier. We conclude that he may not.
This inquiry is governed by Canons of Professional Ethics, Canon 36:
Retirement From Judicial Position or Public Employment.
A lawyer should not accept employment as an advocate in any matter upon the merits of which he has previously acted in a judicial capacity.
Whether or not the merits of the earlier claim are pertinent to the present claim is relatively unimportant. In such a situation the slightest possibility of having to use information gained in his service as judge forbids the attorney from acting as counsel in the present case.
To allay any possible suspicion that might arise, the attorney should discontinue his representation of the carrier. This principle was set forth in our Opinions 32, 87 N.J.L.J. 185 (1964), and 88, 89 N.J.L.J. 49 (1966), wherein we stated:
If the profession is to occupy that position in public esteem which will enable it to be of the greatest usefulness, it must avoid not only all evil but must likewise avoid the appearance of evil. A.B.A. Comm. on Professional Ethics and (grievances, Opinion 49 (1931).