100 N.J.L.J. 545
June 23, 1977
Conflict of Interest
State Civil Rights Examiner
in Federal Civil Rights Practice
The inquirer is a part-time hearing examiner in the New Jersey
Division of Civil Rights, which is in the Department of Law and
Public Safety of the State. He was appointed by the Attorney
General pursuant to N.J.S.A. 10:5-8(1) to preside at and decide
administrative hearings in the Division on Civil Rights under the
Law Against Discrimination, N.J.S.A. 10:5-1 et seq. He states that
his first and only involvement with these discrimination cases is
after there has been an investigation, a finding of probable cause
and after there has been a breakdown of conciliation in the
Division. He is then assigned on a per diem basis to preside at the
contested public hearing (generally no more than a few days per
month) and to render recommended findings of fact and conclusions
of law to the director, after which his involvement in the case
He states that as a hearing examiner he is a "state employee" within the meaning of New Jersey Conflicts of Interest Law, N.J.S.A. 52:13D-12 et seq., and is thus prohibited from appearing before certain state agencies in accordance with its sanctions. He inquires whether or not he may, as a private attorney, represent private plaintiffs and defendants in federal civil rights proceedings pursuant to Title VII of the Federal Civil Rights Act of 1964, 42 U.S.C.A. 2000(e)-2 et seq. Under that statute, complainants file complaints with the United States Equal Employment Opportunity Commotion. The Commission first defers a number of these cases to the Division on Civil Rights pursuant to the provisions of 42 U.S.C.A. 2000(e)-5(d). The E.E.O.C. notifies the Division of such cases and affords the Division a period of not less than 60 days to act on the complaint. The Division may either complete such cases as it would any other case before it or return the case to the E.E.O.C. for disposition there. If the E.E.O.C. then proceeds to make a finding of probable cause and if conciliation fails, the E.E.O.C. then issues a right to sue letter to the complainant, pursuant to which he may institute a civil action in the United States District Court pursuant to Title VII. All such cases would appear procedurally to be ones in which the Division on Civil Rights upon deferral never accepted jurisdiction. His inquiries are as follows:
(1) May he represent private parties in the United States courts in civil actions under Title VII or in administrative proceedings before the E.E.O.C. in cases which were never deferred to the New Jersey Division on Civil Rights or in which the E.E.O.C. has decided not to defer to the Division on Civil Rights?
(2) May he represent private parties in the United States courts in civil actions under Title VII or before the E.E.O.C. in cases which were deferred to the Division but over which the Division never asserted any jurisdiction?
First we observe that under the supremacy clause of the federal Constitution and the constitutional power of the federal government to control proceedings in its own courts, Congress and the Department of Justice have the power to regulate proceedings before the Equal Employment Opportunity Commission and before the United States District Court. For diverse reasons, the federal tribunals are considering enacting their own standards for admission and competence to practice before said tribunals. Cf. Report of Judicial Conference of the United States, 63 A.B.A.J. 475 (1977).
The issue in this inquiry is not whether the attorney may appear before the federal tribunal but rather whether permitting him to practice under the circumstances violates the canons of ethical standards regulating the conduct of New Jersey attorneys.
We have generally held that under normal procedures, if the two tribunals operate as distinct and separate entities, neither having any right to interfere with the other, then an attorney may maintain a relationship with one governmental entity while practicing or appearing before another governmental entity. Opinion 44, 87 N.J.L.J. 297 (1964); see Botkin v. Westwood, 52 N.J. Super. 416 (App. Div. 1958). It has thus been held, for example, that an attorney for an incorporated fire district located within the territorial confines of a municipality is not barred from representing parties before the various boards of the municipality where the district is located. Opinion 292, 97 N.J.L.J. 809 (1974). In Opinion 229, 95 N.J.L.J. 81 (1972), we also held that a county counsel is not precluded from representing private parties before municipal agencies within the county confines except in cases where the county or its agencies is or may be a party to the proceedings.
In all such cases, however, a note of caution has been sounded that there may arise a conflict even under the governmental setups outlined. Particularly do we find this so in the subject cases which have been referred to the state Division on Civil Rights for action and over which the State has declined to exercise its jurisdiction.
In Opinion 276, 96 N.J.L.J. 1461 (1973), this Committee held that a former assistant prosecutor was precluded from representing a party who was under investigation by the State Commission of Investigation at a time when the inquirer was an assistant prosecutor. This was so even though the inquirer "had no connection with or knowledge of the file." The rationale of the opinion is the unacceptable appearance of possible impropriety to the general public. Cf. Opinion 340, 99 N.J.L.J. 610, (1976), barring representation on criminal appeal by a firm with which a former assistant prosecutor has become associated, and Opinion 339, 99 N.J.L.J. 601 (1976), precluding a former deputy attorney general involved in a land damage case from continuing to be associated with a firm representing a landowner whose case was investigated by the deputy.