184 N.J.L.J. 390

May 8, 2006

15 N.J.L. 1045

May 15, 2006

Advisory Committee on Professional Ethics

Appointed by the Supreme Court of New Jersey

Advisory Committee on Professional Ethics

Former Government Attorneys and State

Conflict of Interest Law Post-Employment Restrictions

You have inquired whether a provision of the general ethics law, N.J.S.A. 52:13D-17, which prohibits a law firm from representing a client when another member of the firm may be personally conflicted due to his previous involvement with the matter when he formerly was a government employee, must yield to the provisions of RPC 1.11(c), which expressly allows such representation through the use of screening and notification.

Your inquiry poses a situation where there is a direct conflict between a substantive state ethics statute and a Supreme Court Rule of Professional Conduct. Based on the reasoning in Winberry v. Salisbury, 5 N.J. 240 (1950), cert. denied 340 U.S. 877 (1950), it would appear that Supreme Court rules governing the conduct of attorneys should prevail over state statutes in these circumstances.

Similarly, in Knight v. Margate, 86 N.J. 374 (1981), the Supreme Court considered the validity of 1980 amendments to the Conflicts of Interest Law prohibiting judges from being involved with casinos. The Court reaffirmed the Winberry principle, but then as a matter of comity, decided to yield to the Legislature's action. In this case, there was no conflicting Supreme Court ethics rule. The Court noted that the statute acted “in a fashion that does not interfere with the Supreme Court's … regulation of the judiciary and the legal profession.” Id. at 394-95. The Court noted that it has “the overriding constitutional authority to adopt and fashion its own regulatory and ethical requirements for … the practicing bar at any time it becomes appropriate to do so regardless of the Legislature's action.” Id. at 394.

The opposite pattern was considered In the Matter of Advisory Committee on Professional Ethics Opinion 621, 128 N.J. 577 (1992). That case involved activities of an attorney who was a part-time legislative aide, and pitted a more permissive state statute and agency advisory interpretation against a more restrictive ethics opinion issued by this Committee. Because the Court found the ACPE opinion unduly restrictive, and struck down its per se rule, it concluded it did not have to reach the issue of comity which would have been posed by a direct clash between a Court-adopted ethics rule and a state statute.

In this inquiry, the statute is more restrictive and the Court's ethics rule in RPC 1.11(c) is more liberal, allowing attorneys to proceed in proper cases by screening and notification. Our reading of Winberry and Knight is that the Court's ethics rule should prevail in this case, absent a decision by the Court to defer to the statute under principles of comity. This Committee, however, does not view itself as having the power to rule on such questions of deference and comity. Its role is to articulate the proper analysis of the inquiry under the Rules of Professional Conduct. If the inquirer or other affected attorneys seek final resolution of the apparent conflict between RPC 1.11(c) and N.J.S.A. 52:13D-17, they may do so by petitioning the Supreme Court for review pursuant to R. 1:19-8.