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Matter of Inquiry To Advisory Committee on Professional Ethics Index No.

Decided: November 25, 1992.

IN THE MATTER OF INQUIRY TO THE ADVISORY COMMITTEE ON PROFESSIONAL ETHICS INDEX NO. 58-91(B)


On review of a Disposition of the Advisory Committee on Professional Ethics.

Pollock, Wilentz, Clifford, Handler, O'Hern, Garibaldi, Stein

Pollock

The opinion of the court was delivered by

POLLOCK, J.

Appellant, John Dell'Aquilo, a full-time police officer in the Township of Cherry Hill and a member of the bars of Pennsylvania and New Jersey, appeals from a ruling of the Advisory Committee on Professional Ethics (ACPE). In a letter written in response to appellant's inquiry, the ACPE ruled that if he becomes a part-time associate of a law firm, the firm may not represent private clients in criminal matters arising in the Township.

We granted appellant's petition for review, N.J. (1992), and now affirm the ACPE'S ruling.

-I-

While remaining as a full-time police officer with the 125-person Cherry Hill police department, appellant seeks to associate on a part-time basis with a twelve-person law firm in that municipality. The firm represents private litigants in civil and criminal matters.

The issue is whether an appearance of impropriety arises from a law firm's representation of criminal defendants in matters arising in the municipality in which one of its associates is a full-time police officer. The dispositive test is whether an "'informed and concerned private citizen,'" In re Opinion 569, 103 N.J. 325, 331 (1986) (quoting In Re Opinion 415, 81 N.J. 318, 325 (1979)), could reasonably find an appearance of impropriety in that representation. Given that appellant intends to remain as a full-time policeman during his association with the law firm and that policemen are visible components of the administration of Justice in their municipalities, State v. Galati, 64 N.J. 572, 577 (1974), the question virtually answers itself.

Attorneys are disqualified from representing clients not only in cases of actual conflict, but also when representation begets an appearance of impropriety. Thus, multiple representation is impermissible "in those situations in which an ordinary knowledgeable citizen acquainted with the facts would conclude that the multiple representation poses substantial risk of disservice to either the public interest or the interest of one of the clients." RPC 1.7(c)(2).

Appellant urges that screening him from criminal matters would eliminate the appearance of impropriety. He points to Rule of Professional Conduct 1.11, captioned "Successive Government and Private Employment." The Rule states:

An appearance of impropriety may arise from a lawyer representing a private client in connection with a matter that relates to the lawyer's former employment as a public officer or employee even if the lawyer did not personally and substantially participate in it, have actual knowledge of it, or substantial responsibility for it. In such an event, the lawyer may not represent a private client, but a firm with which that lawyer is associated may undertake or continue representation if: (1) the disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee therefrom, and (2) written notice is promptly given to the appropriate government agency to enable it to ascertain compliance with the provisions of this rule.

The exception for screening associates who are former government lawyers arises from the government's need to attract qualified attorneys and from the disincentive that would ensue from the unreasonable disqualification of any firm with which those lawyers might associate after leaving government employment. In re Petition for Review of Opinion 569, 103 N.J. 325, 334-35 (1986). Neither consideration applies in this case.

Appellant seeks to hold two jobs, not leave government service to enter private practice. Unlike the lawyer who, on leaving the government, can no longer acquire sensitive information about private parties, appellant, as long as he is a police officer, could obtain such information. Recognizing the appearance of impropriety in this case should not have a chilling effect on government lawyers or police officers who terminate their public employment to become private practitioners. Should appellant resign from the police force, his firm could screen him in a matter where he would be personally disqualified, provided he "did not personally and substantially participate in it, have actual knowledge of it, or substantial responsibility for it." RPC 1.11(b). Further, appellant remains free to practice with a firm that does not represent clients in criminal matters arising in Cherry Hill. He may not, however, represent clients in criminal matters with interests potentially adverse to his employing municipality. As long as appellant remains a member of the Cherry Hill "law enforcement team," see Perillo v. Advisory Comm. on Professional Ethics, 83 N.J. ...


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