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                                         102 N.J.L.J. 450
                                        November 16, 1978


Appointed by the New Jersey Supreme Court


Conflict of Interest
Attorney-Developer Hiring
Former Assistant Municipal Attorney

    The inquirer represents a business partnership in which he is also a principal. He successfully represented the partnership in a development application before the board of adjustment of a municipality. The municipality then brought an action to set aside the board of adjustment's approval of the application, and although the trial court dismissed the township's complaint, the dismissal was reversed by the Appellate Division. Subsequently, the inquirer employed as an associate in his law firm the former assistant township attorney who had handled the litigation on behalf of the township. He now inquires as to whether his law firm may continue to represent the developer in a possible petition for certification or a new trial of the matter and, if not, whether he may appear pro se as one of the individual partners involved in the development firm. Finally he asks whether, if he may appear pro se, he can utilize one of the partners or associates in his firm, other than the former assistant township attorney, in the preparation of the case, as long as none of them actually appears on behalf of the developer.
    Under DR 9-101(B), a lawyer may not accept private employment in a matter in which he had substantial responsibility while a public employee. Clearly, the former assistant township attorney could not now represent the developer, having represented the municipality in prior phases of the same matter. See Opinion 388, 10l N.J.L.J. 120 (1978). The disqualification of the former assistant township attorney extends to the entire firm by which he is employed. Cf. DR 5-105(D); R. 1:15-3(c).
    A clear conflict of interest was created when the former assistant township attorney was hired by the inquirer, and that conflict cannot now be eliminated by the discharge of the former assistant township attorney or even by consent of the municipality In Opinion 381, 100 N.J.L.J. 1051 (1977), we held that DR 5-105(D) prohibits a law firm representing one party to pending litigation from employing a former public employee who participated in the representation of a public body which was the other party to the litigation, even with the consent of the public body involved.     Such situations must be avoided at all costs, and the law firm must immediacy withdraw from the representation of the development firm. While in some instances it might be appropriate for a member of the bar to appear pro se even though his firm could not ethically represent him, here it is clear that the inquirer would be representing the interests of the entire business partnership, in fact if not in name, and therefore this representation would be unethical. Cf. Opinion 112, 90 N.J.L.J. 365 (1967), holding that a planning board attorney should not appear on behalf of his wife before the board of adjustment of the same municipality.

    The inquirer and his firm should both withdraw immediately from the representation of the development firm in this matter.
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