Petition for Review of Opinion No. 569 of Advisory Committee on Professional Ethics, Matter of

• Decision Date: 09 July 1986
• Citation: 103 N.J. 325,511 A.2d 119
• Parties: In the Matter OF PETITION FOR REVIEW of OPINION NO. 569 OF the ADVISORY COMMITTEE ON PROFESSIONAL ETHICS.
• Court: New Jersey Supreme Court

Page 325

103 N.J. 325

511 A.2d 119

In the Matter OF PETITION FOR REVIEW of OPINION NO. 569 OF the ADVISORY COMMITTEE ON PROFESSIONAL ETHICS.

Supreme Court of New Jersey.

Argued April 28, 1986.

Decided July 9, 1986.

Michael R. Clancy, Deputy Atty. Gen., for appellant, Atty. Gen. of New Jersey (W. Cary Edwards, Jr., Atty. Gen., attorney; Michael R. Cole, former First Asst. Atty. Gen., of counsel).

James Dorment, Jr., for respondent, Advisory Committee on Professional Ethics (Schumann, Hession, Kennelly & Dorment, attorneys).

The opinion of the Court was delivered by

GARIBALDI, J.

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, 390 A.2d 118 (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, 508 A.2d 244 (1985).

I

The ethical constraints on a lawyer who leaves government service are intended to be straightforward. In re Biederman 63 N.J. 396, 307 A.2d 595 (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.] ¹

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 or employee, or (iii) for which the lawyer had substantial responsibility as a public officer or employee. ²

It is undisputed that the inquiring lawyer in this case had no contact whatever with the investigation involved in his or her inquiry. ³ Thus, Rule 1.11(a) is not at issue. Instead, the case turns on Rule 1.11(b), which reads in pertinent part:

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 * * *.

Accordingly, in the absence of an actual or attributed conflict we must determine whether an appearance of impropriety is created by a former deputy attorney general's representation of a private party who is the subject of a disciplinary proceeding before a state agency that the deputy had represented, and in which the investigation of the deputy's client had begun during his or her employment by that agency. For the following reasons, we hold that it does create such an appearance.

II

This Court has had a long history of requiring attorneys to avoid even the appearance of impropriety. ⁴ See Ross v Canino, 93 N.J. 402, 409, 461 A.2d 585 (1983); In re Opinion No. 415, 81 N.J. 318, 323, 407 A.2d 1197; In re Cipriano, 68 N.J. 398, 346 A.2d 393 (1975). This history reflects the principle that an actual conflict of interest or ethical violation is not always necessary to disqualify an attorney when he acts as an adversary against a former or existing client. See, e.g., State v. Rizzo, 69 N.J. 28, 30, 350 A.2d 225 (1975) ("a lawyer must avoid even the appearance of impropriety ... to the end that the image of disinterested justice is not impoverished or tainted"); State v. Galati, 64 N.J. 572, 576, 319 A.2d 220 (1974) ("Thus we must note that in matters of ethics and professional probity, the cause and effect impact upon the public consciousness is almost, perhaps quite, as important as the actual fact.") The "appearance" doctrine is intended not to prevent any actual conflicts of interest but to bolster the public's confidence in the integrity of the legal profession. In re Cipriano, supra, 68 N.J. at 398, 346 A.2d 393; In re Opinion No. 415, supra, 81 N.J. at 323, 407 A.2d 1197. Nevertheless, we have held that the "appearance" of impropriety must be something more than a fanciful possibility. It must have some reasonable basis. Higgins v. Advisory Comm. on Professional Ethics, 73 N.J. 123, 373 A.2d 372 (1977).

When representation of public bodies is involved, this Court has also recognized that "the appearance of impropriety assumes an added dimension." In Matter Of Petition for Review of Opinion 552, 507 A.2d 233 (1986); In re Opinion No. 415, supra, 81 N.J. at 324, 407 A.2d 1197. Precisely because government attorneys are invested with the public trust and because they are more visible to the public, their conduct must be even more circumspect than the private attorney. Id. As commentators have observed:

[P]otentially improper conduct on the part of a government employee is more likely to be scrutinized by the public than that of a private attorney. This is not surprising, since the public is most concerned with the potential misuse of information and power gained when the public itself, rather than a private party, is suffering the consequences. Thus, an appearance of impropriety on the part of a government attorney will inevitably harm not only the individual attorney, but also the entire system of government that allows such improprieties to take place. A perceived impropriety by the former is inevitably seen as a fault of both.

[Developments in the Law--Conflicts of Interest, 94 Harv. L. Rev. 1244, 1416 (1981) (citation omitted).]

It is therefore the viewpoint of the public from which this Court has chosen to judge whether particular conduct would constitute the appearance of impropriety. "We must view the conduct as an informed and concerned private citizen and judge whether the representation of the Bar would be lowered if the conduct were permitted." In re Opinion No. 415, supra, 81 N.J. at 325, 407 A.2d 1197; Perillo v. Advisory Committee on Professional Ethics, 83 N.J. 366, 373, 416 A.2d 801 (1980). Confidence in government depends to a large extent on confidence in the honesty and integrity of its employees.

In this case, there was an adequate factual basis for an informed citizen to conclude that there would be a "high risk" of impropriety if the deputy attorney general represented the licensee before the members of the disciplinary board to which he served as counsel. The Board's investigation into the potential client began while the attorney was in the Board's employ. We accept the attorney's representation that because of the structure of the Attorney General's Office, he or she had absolutely no contact with the individuals who were actually responsible for gathering the information that served as the basis for that investigation. However, we are far less certain that the average citizen, seeing the Board's counsel at the opposite table, would perceive any distinctions or appreciate the bureaucratic structuring of responsibility.

III

The Attorney General's major contention is that the scope of Opinion 569 is so broad that it bars all former deputy attorneys general, regardless of the nature of their government duties and the type of private legal service they subsequently wish to provide, from appearing for six months before the agencies they represented while in state service. We do not agree that the Opinion has the breadth that the Attorney General seeks to give it.

The Opinion is limited to the circumstances under which a former deputy attorney general can properly counsel a private party who is the subject of a disciplinary proceeding before a state agency that the deputy attorney general had represented and in which the investigation of the deputy attorney general's client had begun during his or her employment by that agency. ⁵ This is all the Opinion holds. It does not, nor was it meant to, adopt a per se rule applicable across the board to all former deputy attorneys general providing civil representation to state agencies. Such a blanket rule for all former...