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In re Advisory Committee on Professional Ethics Opinion 705

July 19, 2007

IN RE: ADVISORY COMMITTEE ON PROFESSIONAL ETHICS OPINION 705


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

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

In this appeal, the Court must determine whether a provision of the New Jersey Conflicts of Interest Law (Act), N.J.S.A. 52:13D-12 to -27, must yield to a conflicting Rule of Professional Conduct (RPC).

RPC 1.11 prohibits a former government attorney from representing a private client in matters in which the lawyer, as a public employee, recently or substantially participated. However, the conflict of interest is not imputed to the attorney's law firm if the disqualified lawyer is screened from any participation and does not share in the fees, and written notice is given promptly to the appropriate government agency. RPC 1.11(c).

In May 2005, in compliance with the Rule, attorney John M. Van Dalen, of Van Dalen Brower, L.L.C., notified the Division of Law and Public Safety that he represented a client in a matter concerning Harbor Cove in Somers Point. The letter informed the Division that Van Dalen's partner, Stephen Brower, a former Deputy Attorney General, was screened from participation in the matter because of Brower's responsibilities for legal services to the Department of Environmental Protection in connection with Harbor Cove.

The Division advised Van Dalen that in addition to meeting the requirements of RPC 1.11(c), his firm was also required to comply with N.J.S.A. 52:13D-17, which provides that no former State employee may represent, "whether by himself [or herself] or through any partnership, firm or corporation in which he [or she] has an interest," any client other than the State in connection with a matter that the employee was "substantially and directly involved" with as a State employee.

Van Dalen submitted an inquiry to the Advisory Committee on Professional Ethics (ACPE) on whether RPC 1.11 should prevail over the more restrictive mandates of N.J.S.A. 52:13D-17. Although the present conflict of interest has become moot, Van Dalen requested that the ACPE address the overlap of the Act and RPC due to the issue's importance to his firm and to the bar generally, as the situation is likely to reoccur.

In response, the ACPE published Opinion No. 705. After recognizing a direct conflict between the statute and the Rule, the ACPE opined that the Court-approved RPC "should prevail" absent a decision by the Court to defer to the statute under principles of comity. The Department of the Public Advocate petitioned this Court to review Opinion 705 pursuant to Rule 1:19-8 and the Court granted the petition.

HELD: Because N.J.S.A. 52:13D-17 serves a legitimate governmental purpose and does not improperly encroach on judicial interests, the Court defers to the Legislature in the spirit of comity and holds that attorneys formerly employed by the State must comply with both the Act and the RPCs.

1. The New Jersey Conflicts of Interest Law endeavors to maintain the public's confidence in government and its officers and employees by ensuring that public servants do not use their official positions to earn money unfairly, especially at the expense of the public. As mentioned above, N.J.S.A. 52:13D-17 provides that no former State employee may represent, "whether by himself [or herself] or through any partnership, firm or corporation in which he [or she] has an interest," any client other than the State in connection with a matter that the employee was "substantially and directly involved" with as a State employee. The Act defines "interest" broadly. N.J.S.A. 52:13D-13(g). Willful violators are subject to a maximum of six-months imprisonment and a $1,000 fine, and a civil penalty of up to $10,000. Applied here, Van Dalen would be precluded from representing any client due to Brower's prior substantial, direct involvement in the Harbor Cove matter and Brower's interest in the law firm. (pp. 6-8)

2. The RPCs applicable to former government attorneys reflect the guiding principle that a lawyer shall not represent a private client if such representation involves taking improper advantage of his or her former governmental position. Accordingly, the RPC's constrain the representational opportunities of former government attorneys in limited circumstances. The pre-curser to the current version of RPC 1.11 imputed a former government attorney's conflict to all members of his or her law firm. As part of an expansive overhaul of the RPCs, RPC 1.11 was amended in 2004 to permit the screening of a former government attorney to cure an actual conflict of interest. Applied here, and assuming Brower is not apportioned any fee, Van Dalen would be ethically permitted to represent the client as long as Brower is screened from involvement in the Harbor Cove matter. (pp. 8-10)

3. The separation of powers principle is designed to maintain balance between the three branches of government, to preserve their respective independence and integrity, and prevent the concentration of unchecked power in the hands of one branch. It is expressly enumerated in our Constitution. Any deviation from the separation of powers principle that impairs the essential integrity of one of the branches of government will not be tolerated. However, the doctrine requires not an absolute division of power but a cooperative accommodation among the three branches of government. A rigid and inflexible classification of powers would render government unworkable. The Constitution gives the Supreme Court jurisdiction over the admission to practice law and discipline of persons admitted. Notwithstanding that grant of authority, this Court has shared its jurisdiction with the Legislature and upheld narrowly-circumscribed legislation that touches on attorney discipline. When the actions of another branch of government implicate fields within this Court's purview, the validity of such action and this Court's ultimate power to accept or reject such action, turn upon the legitimacy of the governmental purpose of that action and the extent of the encroachment on judicial prerogatives and interests. (pp. 10-13)

4. The Act is one of the Legislature's many attempts to preserve and enhance the public's confidence in government and its civil servants. There can be no equivocation that the Act vitally serves a significant governmental purpose. In addition, the Court does not find N.J.S.A. 52:13D-17 to be an improper infringement of the Judiciary's interests. The Court agrees with the Public Advocate that an exemption for attorneys from the Act would be incongruous with the State's strong policy of ensuring uniformly high ethical standards designed to stimulate public confidence in civil servants. In the interest of comity, the Court holds that the restrictions imposed by N.J.S.A. 52:13D-17 on all former State employees are equally applicable to attorneys and need not yield to the conflicting commands of RPC 1.11. The Court refers the matter to the Professional Responsibility Rules Committee for a reevaluation of RPC 1.11 and directs the Committee to draft a proposed rule in harmony with N.J.S.A. 52:13D-17. (pp. 14-16)

The ruling of the ACPE is REVERSED.

JUSTICE RIVERA-SOTO has filed a separate, DISSENTING opinion, expressing the view that there is no reason presented to supersede a Rule of Professional Conduct that was adopted in the face of the pre-existing statutory prohibition.

CHIEF JUSTICE ZAZZALI and JUSTICES LaVECCHIA, ALBIN, WALLACE and HOENS join in this opinion. JUSTICE RIVERA-SOTO has filed a separate, dissenting opinion. JUSTICE LONG did not participate.

Per curiam.

Argued April 5, 2007

In this appeal, we must determine whether a provision of the New Jersey Conflicts of Interest Law (Act), N.J.S.A. 52:13D-12 to -27, must yield to a conflicting Rule of Professional Conduct (RPC). Specifically, the question presented is whether attorneys formerly employed by the State are subject to N.J.S.A. 52:13D-17 when the Act's post-employment restrictions are more stringent than the directives of RPC 1.11(c).

In response to an attorney inquiry, the Advisory Committee on Professional Ethics (ACPE) concluded that, absent a decision by this Court to defer to the Legislature, RPC 1.11 "should prevail" over the Act's more restrictive mandates. Because N.J.S.A. 52:13D-17 serves a legitimate governmental purpose and does not improperly encroach on judicial interests, we defer to the Legislature in the spirit of comity and hold that attorneys formerly employed by the State must comply with both the Act and the RPCs.

I.

Rule of Professional Conduct 1.11 prohibits a former government attorney from representing a private client in matters in which the lawyer, as a public employee, recently or substantially participated. See RPC 1.11(a)(1)-(3). However, that conflict of interest will not be imputed to the attorney's law firm 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 given promptly to the appropriate government agency to enable it to ascertain compliance with the provisions of this Rule. [RPC 1.11(c).]

In May 2005, in compliance with RPC 1.11(c)(2), attorney John M. Van Dalen, of Van Dalen Brower, L.L.C., notified the Division of Law of the Department of Law and Public Safety that he represented Scarborough Construction in a matter concerning Harbor Cove in Somers Point. Van Dalen's letter informed the Division that his partner, Stephen Brower, a former Deputy Attorney General, was screened from participation in the matter because of Brower's "responsibilities while in the ...


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