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                                         107 N.J.L.J. 1
                                        January 1, 1981


Appointed by the New Jersey Supreme Court


Conflict of Interest - DR 9-101, DR 5-105(D)
Public Agency Attorney Transferring to
Accepting Position in another Public Agency

    A member of the Attorney General's staff seeks to accept a position in the Department of Public Advocate, specifically its Office of Advocacy for the Developmentally Disabled. His duties in the Attorney General's office included participation in three matters in which the Department of Public Advocate through its Division of Public Interest Advocacy was either a possible party, a party, or amicus curiae. The new position is in a different division of that department, headed by a different individual; its offices are in a building different from that of the Division of Public Interest Advocacy. The Department of Public Advocate exercises a policy of screening its lawyers from any direct or indirect participation in matters which they may have worked on during prior employment. Our opinions have considered situations where an attorney in public employment seeks to affiliate with a private firm which is litigating for private clients in opposition to that attorney's public employer. DR 9-101(B) provides:
        A lawyer shall not accept private employment in a matter in which he had substantial responsibility while he was a public employee.

In our Opinion 381, l00 N.J.L.J. 1051 (1977), we held that DR 9-101(B) prevented a deputy attorney general, substantially involved in a pending suit, from accepting employment with the private firm active in that litigation even though the private firm represented that it would screen the deputy attorney general from all participation in that case. The directive "Notice to the Bar", 86 N.J.L.J. 713 (1963), was cited as controlling. And see Opinions 388, 101 N.J.L.J. 120 (1978), 344, 99 N.J.L.J. 705 (1976), 339, 99 N.J.L.J. 601 (1976), 329, 99 N.J.L.J. 433 (1976) and 29, 87 N.J.L.J. 106 (1964). In that case, DR 5-105(D) applied to preclude the new employment while the partners and associates of the new firm continued in the litigation against the State.
    In our Opinion 29, supra, we held that an attorney who was counsel to two different public agencies should not negotiate a contract between them. In doing so we extended the application of DR 9-101 and the above "Notice to the Bar" to matters in which two public agencies are concerned.
    However the Office of Attorney General and the Department of Public Advocate are together seeking the enforcement of law and the protection of the public interest. Though these officers may take opposing positions in certain controversies they have a common goal, the advancement of good government in all its economic and social components.
    DR 9-101 is derived from Canon 9: "A Lawyer should avoid even the Appearance of Professional Impropriety." This precept is the
policy consideration behind that rule. It is raised when it appears that an attorney is "switching sides" for personal benefit. We invoke it where there is an adequate basis for a belief by members of the public reasonably familiar with governmental affairs that these relationships create a high risk of impropriety. Perillo and Ramer v. Advisory Committee on Professional Ethics - Opinion 423, 103 N.J. 481 (1980).
    In applying this policy to our inquiry we conclude that the separation of the two divisions of the Public Advocate in location, structure and supervision must be taken into account; and that a screening process not accepted in Opinion 381, supra, will remove the "switching sides" problem since the two employers are public agencies. We stress the absolute need to isolate the employee in his new job £rom any contact, direct or indirect with the litigation in which he had substantial responsibility during his prior employment. Under these facts there is no risk that the public may view the employment change as creating a high risk of impropriety. Testing this inquiry by these considerations we approve the transfer. In coming to this conclusion we are mindful of the need for encouraging government attorneys to stay in the public service. See American Bar Association Committee on Ethics and Professional Responsibility Formal Opinion 342, note 18, at page 6 (November 24, 1975).
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