97 N.J.L.J. 993
December 19, 1974
Conflict of Interest
Former Attorney of Public Body
Representing Private Clients
Last year the Supreme Court sent to our Committee a series of
newspaper articles dealing with alleged wrongdoing by public
officials, including attorneys, in municipal government in a
certain New Jersey municipality. The Court suggested that we
consider the matter and make a recommendation.
There were six articles, published on consecutive days, pointing the finger of suspicion at various public officeholders in the municipality. One of the series was entitled "How Political Lawyers Develop Winning Ways" and zeroed in on two lawyers who were former municipal attorneys, both of whom the article said "have become active advocates for private clients" before boards in the municipality and alleged that as these attorneys "brought more and more applications before local boards, the suspicion grew stronger . . ., that political pull was influencing decisions." It is this article dealing with the two attorneys that concerns the Court and this Committee.
The appearance of an attorney on behalf of private clients before a public body or agency by which he was formerly employed is not prohibited by the Disciplinary Rules of the Code of Professional Responsibility or by the Rules Governing the Courts of the State of New Jersey. Such representation, however, is not permissible in a matter in which the attorney had substantial responsibility while he was in the employ of the public body or agency and he shall not state or imply that he is able to influence improperly such public body or agency. DR 9-101(B) and DR 9-101(C), which read as follows:
(B) A lawyer shall not accept private employment in a matter in which he had substantial responsibility while he was a public employee.
(C) A lawyer shall not state or imply that he is able to influence improperly or upon irrelevant grounds any tribunal, legislative body, or public official.
Additionally, numerous opinions of the Committee on Professional Ethics of the American Bar Association and of this Committee as well as other state ethics committees have repeatedly admonished lawyers to avoid even the appearance of professional impropriety. And Canon 9 of the Code of Professional Responsibility adopted by the American Bar Association provides that:
A Lawyer Should Avoid Even the Appearance of Professional Impropriety.
Are the foregoing Disciplinary Rules, opinions and Canon 9 adequate tools to define any unethical conduct by attorneys in representing private clients before public bodies or agencies by whom they were formerly employed or should a rule of court or disciplinary rule be adopted specifically prohibiting such representation? Let us first consider a specific rule to do this. Such a rule must, of necessity, include a former lawyer-member of a public body or agency. It must also encompass every public office, position or employment regardless of how created. How long should the prohibition continue? Should the length of time be different for an attorney whose public employment lasted, say, twenty years or more, from that of an attorney whose employment was one year or less or should the time be the same regardless of the length of employment? Should a lawyer-governor be barred from representing private clients before all state boards and agencies after his term of office ends? Should the Attorney General and all Deputy Attorneys General be similarly barred? And to what irritant should county prosecutors, county counsels, mayors, members of governing bodies, members of state boards, members of local boards, etc., who are lawyers be barred by such a rule? Would all partners and associates of such an attorney be barred? To pose the foregoing questions clearly demonstrates the difficulties encountered in adopting such a rule.
We must now survey the adequacy of existing ethical standards to cope with the problem. The original 32 Canons of Professional Ethics were adopted by the American Bar Association in 1908. They were based principally on the Code of Ethics adopted by the Alabama State Bar Association in 1887 which, in turn, had been borrowed largely from the lectures of Judge George Sharswood, published in 1854 under the title of "Professional Ethics." These Canons which were adopted in the State of New Jersey and other states, and the opinions interpreting them never prohibited a lawyer from appearing before a public body or agency that had formerly employed him, except in matters in which he had had substantial responsibility during his public employment. The Code of Professional Responsibility was adopted by the American Bar Association on August 12, 1969, replacing the former Canons of Professional Ethics after an exhaustive study by a special committee appointed on August 14, 1964, of the House of Delegates of the American Bar Association. The study of the committee led to the conclusion that the need for a change in the statements of professional responsibility of lawyers could not be met by merely amending the Canons but that a new Code of Professional Responsibility was the answer. The Supreme Court of the State of New Jersey adopted the Code of Professional Responsibility in 1971 after receiving a report of a special committee appointed by it to review the Code. Neither the committee of the American Bar Association that recommended the Code nor the committee of the Supreme Court of New Jersey in making its report suggested that a lawyer should be prohibited in all matters from representing private clients before a public body or agency that formerly employed him. And the American Bar Association House of Delegates, at its February 1974 mid-year meeting, approved several amendments to the Code of Professional Responsibility which the Supreme Court of New Jersey recently referred to a committee to advise the Court with respect thereto and none of the amendments dealt with the conduct of an a attorney after leaving public employment. It is also significant that the New Jersey Conflicts of Interest Law (N.J.S.A. 52:13D-12 et seq.) enacted in 1971, effective January 11, 1972, contained a provision prohibiting state officers and employees within two years after termination of employment from representing, appearing for or negotiating on behalf of anyone other than the State or the State agency by which the officer or employee was formerly employed but the provision was deleted by an amendment adopted before the law became effective. (See L. 1971, c. 359, 3). The statute, on its effective date and at the present time, contains a provision prohibiting such representation only in matters that state officers or employees "shall have made any investigation, rendered any ruling, given any opinion or been otherwise substantially and directly involved at any time during the course of his office or employment." (N.J.S.A. 52:13D-17) This is substantially similar to DR 9-101(B), supra.
We are of the opinion that the ethical standards relating to the propriety of an attorney representing private clients before a public body or agency that formerly employed him or of which he was formerly a member, established by over a century of use and interpretation of the Canons of Professional Ethics and the Code of
Professional Responsibility, are adequate to discipline an attorney charged with unethical use of his former public position. Accordingly, this Committee is of the further opinion that there is no need to enlarge the present rules which prohibit unethical use of a former public office or position.