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Legal Memorandum: Successive Government and Private Employment

Issue: Do the New Jersey Rules of Professional Conduct allow an attorney to represent a client with a claim against a governmental entity the attorney previously represented?

Area of Law: Ethics & Professional Responsibility
Keywords: Represented a governmental entity; Private client; Lawyer
Jurisdiction: Federal, New Jersey
Cited Cases: None
Cited Statutes: N.J. RPC 1.11; N.J. RPC 1.9(a)
Date: 03/01/2015

The Rules of Professional Conduct provide that when the attorney formerly represented a governmental entity, the lawyer may not later represent a private client in a matter—

(1)  in which the lawyer participated personally and substantially as a public officer or employee; or

 

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

 

(3)  when the interests of the private party are materially adverse to the appropriate government agency, provided, however, that the application of this provision shall be limited to a period of six months immediately following the termination of the attorney’s service as a government lawyer or public officer.

 

N.J. RPC 1.11(a). For purposes of Rule 1.11, “‘matter includes any judicial or other proceeding, application, request for a ruling or other determination . . . controversy . . . or other particular matter involving a specific party or parties . . . .”  Id., RPC 1.11(e)(1).  See also RPC 1.11(a); RPC 1.9(a) (lawyer cannot represent a client “in the same or a substantially related matter” when that client’s interests are “materially adverse to the interests of [a] former client,” unless former client consents to the new representation). 

Further, Rule 1.11 specifically provides that when the private party’s interests are materially adverse to the governmental entity, the prohibition against representation is limited to “six months immediately following the termination of the attorney’s service as a government lawyer or public officer.  N.J. RPC 1.11(a)(3).