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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.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 Disciplinary Rules of Professional Conduct
Comment - Rule 1.11
The Court adopts paragraphs (c), (d) and (e) of ABA Model Rule 1.11, but adopts revised versions of paragraphs (a) and (b).
The Kutak Commission would bar a lawyer from representing "a private client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency consents after consultation." The Kutak Commission report further provides "[e]xcept as law may otherwise expressly permit, a lawyer having information that the lawyer knows is confidential government information about a person acquired when the lawyer was a public officer or employee, may not represent a private client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person." In both situations, however, the Kutak Commission would have permitted the lawyer's firm to "undertake or continue representation" in such matter by screening the disqualified lawyer.
By contrast, the Debevoise Committee would not only bar the lawyer from representing "a private client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee," but also would disqualify the lawyer's firm. Similarly, the Debevoise Committee would bar both the lawyer and the lawyer's firm from representing a private client about whom the lawyer had acquired knowledge of confidential government information while a public officer or employee.
The United States Department of Justice filed written comments to the Debevoise Committee report "object[ing] most strenuously to the adoption of an absolute imputed disqualification rule for law firms hiring former government lawyers, unless the rule includes a screening or waiver mechanism to mitigate its unjustifiably harsh and selective impact on government lawyers." The Department of Justice pointed out that the rule proposed by the Debevoise Committee would impair the recruitment and retention of federal lawyers, further contending that the rule proposed would "impose[ ] a significantly greater burden on Federal employees than those set forth in the Federal post-employment statutes and regulations," and would violate the Supremacy Clause of the United States Constitution. The Department concluded that it "has long been of the view that screening measures are ordinarily sufficient to dispel any appearance of impropriety in a law firm's representation in a matter for which one of its members is disqualified." The Securities and Exchange Commission, in its written comments, challenged the conclusion of the Debevoise Committee "that screening 'would constitute a clear conflict of interest and the dangers for abuse are too great.' " Under existing New Jersey law, a former government employee is barred from representing a private client in connection with a matter if (1) the lawyer substantially or personally participated in the matter while in government employment, (2) acquired actual knowledge of the matter, or (3) had substantial authority for it as a public officer or employee. Ross v. Canino, 93 N.J. 402 (1983); In re Advisory Opinion No. 361, 77 N.J. 199 (1978). In those situations, the disqualification would extend to the firm with which the lawyer was associated. In other situations, where no actual conflict existed, disqualification of a former government employee does not extend to the firm with which the lawyer is associated. Furthermore, ultimate responsibility of a public officer or employee is not necessarily tantamount to substantial responsibility.
The Court has adopted a paragraph (a) that would bar the representation where the attorney either had acquired confidential information or had had substantial responsibility. Whether ultimate responsibility for a matter equates with substantial responsibility will depend on the circumstances of each case. See, e.g., Ross v. Canino, supra, 93 N.J. at 409 (under circumstances of case, ultimate responsibility of Attorney General for Department of Law and Public Safety did not equate with substantial responsibility for particular investigation by Division of Criminal Justice). RPC 1.11 as adopted is consistent with prior law and is intended to strike an appropriate balance of the competing interests.