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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.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

1.12   Rule 1.12 Former Judge or Arbitrator

1.12:100   Comparative Analysis of New Jersey Rule

Primary New Jersey References: NJ Rule 1.12
Background References: ABA Model Rule 1.12, Other Jurisdictions
Commentary:
NJ Commentary:

1.12:101      Model Rule Comparison

The title of New Jersey’s RPC 1.12 was changed to read “ Rule 1.12 - Former Judge or Arbitrator or Law Clerk.” This change in the title from that of the Model Rule was made to reflect the fact that law clerks are specifically dealt with RPC 1.12.

The New Jersey Supreme Court accepted the recommendations of the Debevoise Committee not to include a screening procedure for an attorney disqualified in a matter in which the attorney had participated personally or substantially as a judge, adjudicatory officer, arbitrator or law clerk as set forth in Rule 1.12(a). As a result, paragraph (c) of the Model Rule 1.12 was not adopted in New Jersey.

Due to the deletion of paragraph (c) of the Model Rule 1.12, the original paragraph (d) of the Model Rule was changed to paragraph (c) in New Jersey’s RPC 1.12 as was the reference in paragraph (a) to the original paragraph (d) of the Model Rule.

1.12:102      Model Code Comparison

There is no direct counterpart in the New Jersey RPCs.

1.12:200   Former Judge or Arbitrator Representing Client in Same Matter

Primary New Jersey References: NJ Rule 1.12(a)
Background References: ABA Model Rule 1.12(a), Other Jurisdictions
Commentary: ABA/BNA § 91.4501
NJ Commentary: Section 22:5, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000)

RPC 1.12 contains a special rule applicable to former judges, arbitrators, and their law clerks. The rule provides as follows:

Except as stated in paragraph (c), a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer, arbitrator, or law clerk to such a person, unless all parties to the proceeding consent after disclosure.

In Matter of Tenure Hearing of Onorevole, 103 N.J. 548, 559 (1986), the New Jersey Supreme Court concluded that RPC 1.12(a) governs the conduct of a former administrative law judge. Note, however, that the Onorevole Court also analyzed a former ALJ’s conduct under RPC 1.11(a) because he had served as a “public officer,” see id., thus raising the possibility that other former judges, arbitrators, and their law clerks will be subject to RPC 1.11(a) because of their former status as public officers or employees.

With respect to the meaning of substantial participation in this context, see Marxe v. Marxe, 238 N.J. Super. 490, 493-494 (Ch. Div. 1989), holding that a former judicial clerk who had assisted the judge during her clerkship in the evaluation of several motions in a matrimonial case had not participated substantially in the matter within the meaning of RPC 1.12(a). Consequently, the court concluded that the former clerk’s current firm would not be disqualified from continuing to represent the plaintiff in the case. The court also rejected the argument that the situation created an appearance of impropriety. See id. at 495. Nevertheless, in reaching its decision, the court relied in part on the fact that the firm had set up a “Chinese Wall” to screen the former clerk from any involvement in the case. See id. at 497.

1.12:300   Negotiating for Future Employment

Primary New Jersey References: NJ Rule 1.12(b)
Background References: ABA Model Rule 1.12(b), Other Jurisdictions
Commentary: ABA/BNA § 91:4001, ALI-LGL § 206, Wolfram § 8.10
NJ Commentary: Section 22:6, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000)

RPC 1.12(b) addresses specifically the issue of a judge negotiating for private employment:

A lawyer shall not negotiate for employment with any person who is involved as a party or as an attorney for a party in a matter in which the lawyer is participating personally and substantially as a judge or other adjudicative officer, or arbitrator.

The rule provides an exception for a lawyer serving as a law clerk to a judge or arbitrator:

A lawyer serving as law clerk to a judge or arbitrator may negotiate for employment with a party or attorney involved in a matter in which the law clerk is participating personally and substantially, but only after the lawyer has notified the judge or arbitrator.

Id. See also Marxe v. Marxe, 238 N.J. Super. 490, 494-495 (Ch. Div. 1989).

1.12:400   Screening to Prevent Imputed Disqualification

Primary New Jersey References: NJ Rule 1.12(c)
Background References: ABA Model Rule 1.12(c), Other Jurisdictions
Commentary: ABA/BNA § 91:4501, ALI-LGL §§ 203, 204, Wolfram § 7.6.4
NJ Commentary:

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

1.12:500   Partisan Arbitrators Selected by Parties to Dispute

Primary New Jersey References: NJ Rule 1.12(d)
Background References: ABA Model Rule 1.12(d), Other Jurisdictions
Commentary: ABA/BNA § 51:1501
NJ Commentary:

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