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End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

We regret any inconvenience.

Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


New Jersey Legal Ethics

1.11   Rule 1.11 Successive Government and Private Employment

1.11:100   Comparative Analysis of New Jersey Rule

Primary New Jersey References: NJ Rule 1.11
Background References: ABA Model Rule 1.11, Other Jurisdictions
Commentary:
NJ Commentary:

RPC 1.11 prohibits a former government lawyer and his or her firm from representing a client when the lawyer had some contact with the client’s matter while serving as public employee. Even when a former government lawyer had no contact with a client’s matter while serving as a government employee, he or she (but not his or her firm) may be prohibited from undertaking the representation by the “appearance of impropriety” doctrine. RPC 1.11 also imposes restrictions on a lawyer moving from private practice to government service.

1.11:101      Model Rule Comparison

The New Jersey Supreme Court adopted paragraphs (c), (d) and (e) of the ABA Model Rule 1.11, but revised paragraphs (a) and (b) of this Model Rule before adoption. Paragraph (a) of RPC 1.11 was revised to bar an attorney from representing a private client in connection with a matter in which the attorney had participated where the attorney either had acquired confidential information or had had substantial responsibility as a public officer or employee. Paragraph (b) of RPC 1.11 was revised from the Model Rule to preserve the appearance of impropriety doctrine, which holds that even in the absence of an actual conflict of interest, an attorney may be precluded from representing a particular client if the representation would create an appearance of impropriety.

1.11:102      Model Code Comparison

There is no direct counterpart in the New Jersey RPCs.

1.11:110      Federal Conflict of Interest Statutes and Regulations

[The discussion of this topic has not yet been written.]

1.11:120      New Jersey Conflict of Interest Statutes and Regulations

New Jersey’s Conflicts of Interest Law, N.J.S. 52:13D-12 through -27, imposes restrictions on lawyers who previously have been employed by a State agency. In general, the provisions of the Conflicts of Interest Law are not as restrictive as the relevant provisions of the RPCs. See N.J. Advisory Comm. on Professional Ethics Op. 614 (July 21, 1988).

Note that disqualifications under N.J.S. 52:13D-17 are imputed to “any partnership, firm or corporation in which” the former State employee has an interest, and to the partners, officers, and employees of those entities.

New Jersey’s Conflicts of Interest Law, N.J.S. 52:13D-12 through -27, also imposes restrictions on lawyers who are employed concurrently by the State government. The Law seeks to eliminate the appearance of impropriety inherent in “members of the official family of State Government representing interests before agencies of the very government with which they [are] associated.” In re Exec. Com’n on Ethical Stand., 116 N.J. 216, 220 (1989). The Law regulates the activities of both current and former State employees.

The Law covers full-time, part-time, elected, appointed, and uncompensated positions. See N.J.S. 52:13D-13(b), (e). In general, full-time State employees may not appear on behalf of a private party before any State agency, see N.J.S. 52:13D-16(b), while part-time employees may not appear or negotiate on behalf of a private party before the particular office in which they are employed. See N.J.S. 52:13D-16(a). The Law defines “State agency” as a department or instrumentality of either the Executive or Legislative branch of the State government. See N.J.S. 52:13D-13(a). Counties and municipalities are specifically excluded from the definition of “State agency.” See N.J.S. 52:13D-13(a). See also Wood v. Dept. of Com. Affairs, 243 N.J. Super. 187, 195-196 (App. Div. 1990), holding that the Office of Administrative Law constitutes a “State agency” within the meaning of the Conflicts of Interest Law. See Section 19:5-2, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000).

This Section is intended to provide only a brief background on this issue; it is by no means exhaustive. For a comprehensive review and analysis of the court decisions, Committee opinions, RPCs, court rules and other authorities relating to this subject, see Section 19:5-2, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000): A comprehensive treatise on the law of lawyering in New Jersey.

1.11:130      Definition of "Matter"

RPC 1.11 defines the term “matter” broadly:

As used in this Rule, the term “matter” includes (1) any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest or other particular matter involving a specific party or parties; and (2) any other matter covered by the conflict of interest rules of the appropriate government agency.

1.11:200   Representation of Another Client by Former Government Lawyer

Primary New Jersey References: NJ Rule 1.11(a)
Background References: ABA Model Rule 1.11(a), Other Jurisdictions
Commentary: ABA/BNA § 91:4001, ALI-LGL § 214, Wolfram § 8.10
NJ Commentary:

RPC 1.11 prohibits a former government lawyer and his or her firm from representing a client when the lawyer had some contact with the client’s matter while serving as public employee. Even when a former government lawyer had no contact with a client’s matter while serving as a government employee, he or she (but not his or her firm) may be prohibited from undertaking the representation by the “appearance of impropriety” doctrine. RPC 1.11 also imposes restrictions on a lawyer moving from private practice to government service.

See N.J. Advisory Comm. on Professional Ethics Op. 614 (July 21, 1988). Note, however, that even when a lawyer had no participation in, responsibility for, or knowledge of a particular matter while working in a government position, he or she may be precluded from later representing a private client in connection with that matter by the “appearance of impropriety” doctrine. See also Matter of Petition for Review of Opinion No. 569, 103 N.J. 325, 329 (1986), stating that RPC 1.11(a) is not implicated when a lawyer “had no contact whatever” with a particular matter while employed in a government position. See Section 22:2-1, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000).

1.11:210      No Imputation to Firm if Former Government Lawyer Is Screened

If an individual lawyer is precluded from a representation only because of an appearance of impropriety arising from prior government employment, his or her firm may handle the matter provided that two conditions are met: (1) the disqualified lawyer must be screened from any participation in, and receive no part of the fee from, the representation; and (2) the firm must give prompt written notice of the situation to the appropriate government agency to enable it to ascertain compliance with the rule. RPC 1.11(b). See also Advisory Comm. Op. 660 (Feb. 24, 1992), permitting a law firm to screen a former State Department of Environmental Protection and Energy (“DEPE”) lawyer and continue to represent plaintiffs in insurance actions for environmental clean-ups, even though the DEPE had initiated proceedings relating to some of the sites while the lawyer was employed by the agency. The Committee also indicated, however, that screening alone might not be appropriate if the interests of the State could be prejudiced in some way or if the State DEPE were adverse to one of the firm’s clients.

Unlike RPC 1.11(b), there is no provision in RPC 1.11(a) permitting a firm to continue a representation after screening a lawyer disqualified because of contact with a matter while serving as a public officer. Thus, notwithstanding the absence of RPC 1.11 from RPC 1.10(a)’s list of rules under which a lawyer’s disqualification will be imputed to his or her firm, an attorney’s preclusion from a representation because of RPC1.11(a) extends to his or her firm.

N.J. Advisory Comm. on Professional Ethics Op. 614 (July 21, 1988) states unequivocally that if a former government lawyer had been involved in a matter within the meaning of RPC 1.11(a), “both he and any firm with which he is associated are barred from representing a private client in connection with that matter.”

Note that screening is also unavailable when a lawyer is disqualified from a representation because of an appearance of impropriety arising out of the lawyer’s concurrent government employment. See Matter of Inquiry to Advisory Committee, 130 N.J. 431, 433-434 (1992).

If there is such an appearance of impropriety, the rule prohibits the former government lawyer from representing that private client. N.J. Advisory Comm. on Professional Ethics Op. 614 (July 21, 1988). Note, however, that the former government lawyer’s firm may represent that client, provided that it complies with certain screening and notice requirements.

While RPC 1.11(b) contains no time limit, the New Jersey Supreme Court has held in circumstances in which there was no contact with a particular matter that the period of disqualification based on an appearance of impropriety should be limited to six months from the date of termination of a lawyer’s government employment. See Matter of Petition for Review of Opinion No. 569, 103 N.J. 325, 334-335 (1986). See Sections 22:3-1 and 22:3-2, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000).

1.11:300   Use of Confidential Government Information

Primary New Jersey References: NJ Rule 1.11(b)
Background References: ABA Model Rule 1.11(b), Other Jurisdictions
Commentary: ABA/BNA § 91:4001, ALI-LGL § 214, Wolfram § 8.10
NJ Commentary:

[The discussion of this topic has not yet been written.]

1.11:310      Definition of "Confidential Government Information"

The term “confidential government information” is defined, for purposes of RPC 1.11, as “information that has been obtained under governmental authority and that, at the time this rule is applied, the government is prohibited by law from disclosing to the public or has a legal privilege not to disclose, and that is not otherwise available to the public.”

RPC 1.11(e). Interestingly, the phrase “confidential government information” does not appear anywhere in RPC 1.11. RPC 1.11(a) only refers to “confidential information” and it is likely that the word “government” was dropped by inadvertence when the Debevoise Committee and the New Jersey Supreme Court made changes to Model Rules 1.11(a) and (b) while retaining the exact language of Model Rules 1.11(c), (d), and (e). See Section 22:1, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000).

1.11:400   Government Lawyer Participation in Matters Related to Prior Representation

Primary New Jersey References: NJ Rule 1.11(c)
Background References: ABA Model Rule 1.11(c), Other Jurisdictions
Commentary: ABA/BNA § 91:4001, ALI-LGL § 213, 214, Wolfram § 8.9.4
NJ Commentary: Sections 22:4-1 and 22:4-2, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000)

RPC 1.11(c) provides:

[e]xcept as law may otherwise expressly permit, a lawyer serving as a public officer or employee shall not ... participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless under applicable law no one is, or by lawful delegation may be, authorized to act in the lawyer’s stead in the matter....

While RPC 1.11(b) applies the “appearance of impropriety” doctrine in the public-to-private employment context, the rule makes no mention of the doctrine in connection with a move from the private sector to government employment. Note, however, that RPC 1.9(b) makes the doctrine applicable in all cases involving potential conflicts with former clients. Thus, the doctrine may be relevant in this context. Cf. Matter of Petition for Review of Opinion No. 569, 103 N.J. 325, 328 (1986), suggesting that the situations governed by RPC 1.11 are merely a subset of the situations governed by RPC 1.9.

1.11:500   Government Lawyer Negotiating for Private Employment

Primary New Jersey References: NJ Rule 1.11(c)(2)
Background References: ABA Model Rule 1.11(c)(2), Other Jurisdictions
Commentary: ABA/BNA § 91:4001, ALI-LGL §§ 156, 214, Wolfram § 9.10
NJ Commentary: Section 22:6, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000)

RPC 1.11(c) provides that “a lawyer serving as a public officer or employee shall not ... negotiate for private employment with any person who is involved as a party or as attorney for a party in a matter in which the lawyer is participating personally and substantially.” RPC 1.11(c)(2). The rule contains an exception for any negotiations expressly permitted by law. See id.