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In re Biederman

Decided: July 6, 1973.

IN THE MATTER OF DAVID A. BIEDERMAN, AN ATTORNEY-AT-LAW


For reprimand -- Chief Justice Weintraub, Justices Jacobs, Proctor, Mountain and Sullivan and Judges Lewis and Collester. Opposed -- None.

Per Curiam

The Union County Ethics Committee found respondent guilty of having violated DR 9-101(B), which reads as follows:

A lawyer shall not accept private employment in a matter in which he had substantial responsibility while he was a public employee.

The predecessor rule appeared as part of former Canon 36 of Professional Ethics. It was very similarly, although less precisely, phrased:

A lawyer, having once held public office or having been in the public employ, should not after his retirement accept employment in connection with any matter which he has investigated or passed upon while in such office or employ.

The pertinent facts may be briefly summarized. While serving as Deputy Attorney General of the State of New Jersey, respondent was assigned to the Department of Transportation and appointed its Chief Counsel. As part of his duties while holding this position, he instituted proceedings against a partnership known as Mal-Bros. Contracting Co. seeking to demonstrate that it should no longer be deemed qualified to bid on contracts involving construction work for the State of New Jersey. This firm was engaged in this type of work and had in the past been the successful bidder on a number of such contracts. As a result of these proceedings

Mal-Bros. was in fact disqualified by the Commissioner of Transportation on the ground of lack of moral integrity. The facts upon which the decision was based are fully set forth in Mal-Bros. Contracting Co. v. Kohl, 113 N.J. Super. 144 (App. Div. 1971), certif. den. 58 N.J. 94 (1971). Respondent acted and appeared for the State of New Jersey in the disqualification proceedings at the hearing before the Commissioner, on appeal before the Appellate Division and before this Court in successfully opposing certification.

Respondent terminated his employment as Deputy Attorney General in November 1971. In February 1972 he was retained as general counsel by Crescent Construction Company, Inc. Admittedly this was the corporate successor of the Mal-Bros. partnership and no one involved in this case, including respondent, seeks to draw any distinction between the two business entities. On March 22, 1972 respondent, acting as attorney for the company, wrote a letter to the Commissioner of Transportation formally requesting that Crescent Construction Company be reinstated as a qualified contractor. On March 27 he wrote a supplemental letter requesting that a formal hearing on the question of reinstatement be held as soon as possible. Just prior to writing the second letter, he had received word from the Attorney General, of whom he had made inquiry as to the propriety of his conduct, that the Attorney General felt it was improper for him to represent the corporation in its effort to be reinstated. Apparently deferring to this advice, respondent purported to withdraw from the case and in fact secured other counsel to appear at the reinstatement hearing. Respondent did appear at the hearing, however, although he sat in that portion of the room reserved for the public and not at counsel table. Toward the close of the proceedings, Commissioner Kohl, who was presiding and who of course knew respondent, stated on the record:

At this point I might note the presence of Mr. David Biederman, who was the legal counsel to the Department at the time of the

prior hearings. I am wondering, Mr. Biederman, whether you are here as an interested observer ...


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