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In re Petition for Review of Opinion No. 569 of Advisory Committee on Professional Ethics

Decided: July 9, 1986.

IN THE MATTER OF PETITION FOR REVIEW OF OPINION NO. 569 OF THE ADVISORY COMMITTEE ON PROFESSIONAL ETHICS


On review of an opinion of the Advisory Committee on Professional Ethics.

For affirmance -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern and Stein. For reversal -- None. The opinion of the Court was delivered by Garibaldi, J.

Garibaldi

This appeal concerns the validity and the scope of Opinion 569, 116 N.J.L.J. 2576 (1985), issued by the Advisory Committee on Professional Ethics (ACPE or Committee). Specifically, Opinion 569 involves the question whether a former deputy attorney general who represented various State professional and occupational licensing boards may represent a licensee who faces possible disciplinary action by one of those boards as the result of an investigation begun while the deputy attorney general was still employed by the State, but of which the deputy attorney general had no knowledge.

The Committee found that the "deputy attorney general should be allowed to represent a private client in connection with an investigation which began while the attorney was in government service but with which he had no connection whatever, subject to [a] six-month period of personal disqualification." It found the situation analogous to the six-month period of personal disqualification that we imposed upon former assistant county prosecutors who wished to represent clients in criminal proceedings in the county in which they served. In re Advisory Opinion No. 361, 77 N.J. 199 (1978). The Committee believed that a period of personal disqualification was necessary in both instances in order to avoid the appearance of impropriety. Opinion 569, 116 N.J.L.J. at 257. Pursuant to Rule 1:19-8(f), the Attorney General petitioned this Court to review the opinion. We granted that petition. 102 N.J. 381 (1985).

I

The ethical constraints on a lawyer who leaves government service are intended to be straightforward. In re Biederman,

63 N.J. 396 (1973) (citing ABA Formal Opinion 134 (1935)). The constraints on former government lawyers follow directly from this Court's General Rules of Professional Conduct [RPC], which apply to both private and public attorneys:

(A) A lawyer who has represented a client in a matter shall not thereafter:

(1) represent another client in the same or a substantially related matter in which that client's interests are materially adverse to the interests of the former client unless the former client consents after a full disclosure of the circumstances and consultation with the former client; or

(2) use information relating to the representation to the disadvantage of the former client except as RPC 1.6 would permit with respect to a client or when the information has become generally known. [ RPC 1.9.]*fn1

Rule of Professional Conduct 1.11 is the specific Rule governing an attorney's successive government and private employment. Rule 1.11(a) specifically recognizes that a former government attorney shall not represent a private client in connection with a matter (i) in which the lawyer participated personally and substantially as a public officer or employee, (ii) about which the lawyer acquired knowledge or confidential information as a public officer ...


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