On review of an opinion of the Advisory Committee on Professional Ethics.
Wilentz, Clifford, Handler, O'Hern, Stein, Pressler, Gruccio
The opinion of the court was delivered by
The issues raised in this case concern the proper ethics restrictions on the private practice of lawyers who are part-time legislative aides. A legislative aide is someone hired by a legislator to assist him or her in whatever way the legislator deems appropriate. Some of the aides are lawyers, some are not. Apparently, almost all are part-time. Some receive no compensation, while some are paid a salary determined by the legislator; some receive only reimbursement for expenses. Any monies that are paid, however, come from the State.
Under the Conflicts of Interest law, N.J.S.A. 52:13D-12 to -27 (the Act), the legislative aides are considered "special State officers or employees" and are subject to certain restrictions on their outside employment, which undoubtedly provides their major source of income. Those restrictions are significant mostly for those part-time legislative aides who are lawyers.
The purpose of the Act is to maintain the public's confidence in government and its officers and employees. In pursuit of that goal, the Act's restrictions, applicable to all State employees, not just legislative aides or other special State employees, attempt to ensure that public servants do not, either in fact or in appearance, use their official positions to earn money unfairly, especially at the expense of the public. Those restrictions, in the case of lawyers, are in addition to whatever restrictions apply by virtue of our Rules of Professional Conduct (RPC), applicable to all attorneys.
We hold that under the Act and our RPCs the following restrictions apply to the private legal practice of lawyers who are part-time legislative aides: 1) they may not represent a private party in any way before the Legislature or either house thereof or before any agency of the Legislature; 2) they may not represent a private party in any way before any agency of the State, whether in the legislative, executive, or judicial branch of government, in connection with any matter for which they have or have had substantial responsibility as a legislative aide; and 3) they may not represent a private party in any way before any agency of State government in any of its branches if such representation would create an appearance of impropriety. Given the unpredictable nature of the facts that can occur in matters of this kind, there may be situations not covered by the foregoing that trigger rules of ethical conduct that impose other restrictions in particular cases.
We also hold that given the facts of record in this matter, the appellant Zublatt's representation of a private party before any agency of State government outside the Legislature would not create an appearance of impropriety. Furthermore, while the record before us is insufficient to allow us to be certain on this point, it indicates that in cases involving a relatively minimal involvement of legislative aides in the legislative process, the "appearance of impropriety" restriction will ordinarily not apply. As noted later, however, the determination of whether any representation of a private party before executive agencies would create an appearance of impropriety is very much dependent on the facts of the case. Reardon v. Marlayne, Inc., 83 N.J. 460, 469 (1980). Consequently, there will undoubtedly be some cases in which such appearance of impropriety would exist and such representation by a lawyer/legislative aide would be improper.
Alan Zublatt, an attorney engaged in private practice, is a partner in the firm of Mezey, Mezey, Goldman & Zublatt. His firm's practice consists mainly of commercial land-use and zoning matters. Regular appearances before governmental bodies are therefore necessary, including but not limited to municipal and county planning boards and boards of adjustment. Occasional appearances are also made before State agencies and administrative law Judges. Finally, the firm is engaged in litigation in both State and federal courts. Opinion No. 621, 122 N.J.L.J. 1406 (1988).
Zublatt was offered the position of legislative aide by an Assemblyman. His duties, as he understood them, would have included "analysis of proposed legislation, periodic Assembly appearances, conferences with constituent lobbyists and public speaking engagements on behalf of the Assemblyman." Ibid. Generally aware of the ethics restrictions on private practice that might result from accepting the position, he asked the Advisory Committee on Professional Ethics (ACPE), pursuant to Rule 1:19-2 for an advisory opinion on the matter. The inquiry consisted of three specific questions:
A) Will the candidate's acceptance impose any ethical prohibitions upon his personal ability to practice, appear before and represent private clients before State agencies and/or county and/or municipal bodies?
B) Will the assignment preclude the firm from engaging in practice within the jurisdiction of the civil courts, State and Federal, and/or before Municipal, Compensation, or Administrative Law Courts, and/or State, County or Municipal authorities?
C) Assuming arguendo that formal appearances before State agencies would be proscribed, would correspondence and communications with these entities be permitted?
The ACPE's opinion concluded that Mr. Zublatt could neither represent private parties before any State agency in any of the branches of government nor communicate with such agencies on the clients' behalf. As clarified, the opinion restricts him from appearances in court only when the State is actually an adverse party in the litigation. Supplement to Opinion No. 621, 124 N.J.L.J. 1450, 1472 (1989). The restriction extends not simply to "appearances" before such agencies but to applications of all kind, be it for permits, waivers, and rulings. Opinion No. 621, supra, 122 N.J.L.J. at 1420. In essence, he is prohibited from having anything to do with any of these agencies on behalf of his clients.*fn1
The ACPE stayed the effect of its opinion pending Disposition of the issue by this Court.
Not only did Zublatt seek Court review of the ACPE opinion pursuant to Rule 1:19-8, but so did the State, the Senate, the Assembly, and the Office of Legislative Services, acting on behalf of the Legislature and the Joint Legislative Committee on Ethical Standards. We granted the petitions of all these parties, in effect waiving the requirement of Rule 1:19-8(a) that restricts such appeal to "an aggrieved member of the bar, bar association or ethics committee."
The concern of the other branches of government, and a major theme in these proceedings, is the asserted likelihood that unless clarified or modified, Opinion No. 621 represents the death-knell not only of part-time lawyer/legislative aides but of all lawyers who serve part-time in government for either the legislative or executive branches. It is not clear how many such lawyers are affected, but the number has been suggested as running into the hundreds. Judged by the intensity of the attack on Opinion No. 621, both the Legislature and the Executive believe it would cause an irreparable loss of public service to the State.
The Act is a post-Watergate enactment designed to maintain public confidence in government by placing restrictions on self-dealing between public officials and government agencies. It is addressed not only to situations of actual conflict of interest and divided loyalty, but also to their appearance. N.J.S.A. 52:13D-12. The Act was substantially modified to address ethical concerns related to the casino gaming industry. See L. 1981, c. 142 and L. 1980, c. 79. In many respects it mirrors both the restrictions and the principles of attorney ethics.
The Act divides public officials into three groups: State officers and employees, special State officers and employees, and legislators N.J.S.A. 52:13D-13. State officers and ...