99 N.J.L.J. 601
July 8, 1976
Conflict of Interest
Former Deputy Attorney General
Now Employed by Firm Opposing State
The inquirer's firm represents a defendant in a condemnation
action commenced by a municipality. Because the complaint and
answer raised the question of whether some or all of the land is
riparian and therefore owned by the State of New Jersey, the State
was made a party and was represented by a deputy attorney general.
The deputy attorney general in question has since become an
employee of the inquirer's law firm. He will be working in an
office of the firm in another county where, it is alleged, he has
virtually no exchange of cases with the office where the partner in
charge of the litigation works.
In the inquiry it is stated that the employee had substantial responsibility for the matter while he was a deputy attorney general but he has no knowledge of any of the critical facts or proofs which will be used by the State to prove its ownership of the property. Because of this and the organization of the law firm with separate offices in two different counties, the inquirer believes that the case is unique and his firm should be permitted to continue to represent the defendant.
It is first argued that the firm is not precluded from such representation under the existing conflict of interest law, N.J.S.A. 52:13D-17 which provides:
No State officer or employee or special State officer or employee, subsequent to the termination of his office or employment in any State agency, shall represent, appear for or negotiate on behalf of, or agree to represent, appear for, or negotiate on behalf of, whether by himself or through any partnership, firm or corporation in which he has an interest or through any partner, officer or employee thereof, any person or party other than the State in connection with any cause, proceeding, application or other matter with respect to which such State officer or employee or special State officer or employee shall have made any investigation, rendered any ruling, given any opinion, or been otherwise substantially and directly involved at anytime during the course of his office or employment. (Emphasis added)
The inquirer contends that since interest in a corporation is defined under the act as meaning the ownership or control of more than ten percent of the stock of the corporation, and since the former deputy attorney general does not have more than a ten percent interest in the partnership, the restriction of the statute should apply only to the former state officer and not to other members of the firm.
Whatever may be the merits of this argument as applied to other professions or callings, it cannot apply to attorneys. As to attorneys, DR 5-105(D) provides that "[i]f a lawyer is required to decline employment or to withdraw from employment under DR 5-105, no partner or associate of his or his firm may continue such employment." In Opinion 329, 99 N.J.L.J. 433 (1976), this Committee reviewed its Opinion 313, 98 N.J.L.J. 753 (1975). We then stated that "[t]he essential limiting factor in the relationship is whether the prospective employee had any 'substantial responsibility' ... while with the former public employer. If so, he may not accept such employment, ..." nor may his firm continue to be involved in the adversarial litigation within the state or any of its agencies.
The distinction made by the inquirer that his firm has two separate offices will not preclude the violation of the statute and the rule. Many firms now maintain separate offices, but they are partnerships in fact and the actions of every partner or associate are imputed to the entire firm.
The Committee has reviewed Formal Opinion 342 of the American Bar Association Committee on Ethics and Professional Responsibility (1975) and this conclusion conforms with that Opinion. It has not been suggested here that the attorney general has or would give consent to the continued representation of the client by the firm. Only when the governmental agency is satisfied that the screening measures employed will effectively isolate the individual lawyer from participating in the particular matter, and sharing in the fees attributable to it, and that there is no appearance of significant impropriety affecting the interests of the government, may the government waive the disqualification of the firm under DR
5-105(D). This Committee has not yet had the occasion to consider those circumstances under which such consent may be given, but has simply stated that in connection with such impermissible employment consent from public bodies will probably be impossible to obtain.
Opinion 329, supra.