Government lawyers who may be furloughed due to the federal sequester generally are not conflicted out of counseling or advocating for their agencies on the matter, a Supreme Court committee said Monday in a formal opinion.
Like all civilian federal employees, agency lawyers face the possibility of one-day-a-week furloughs as a result of the series of automatic cost-saving budgetary cuts that took effect at the beginning of the year.
In "accordance with sound public policy, mass disqualification of all government lawyers in that class is not warranted by the Rules of Professional Conduct," the Advisory Committee on Professional Ethics held in Opinion 726.
However, there could be a conflict with personal interests, which would require disqualification, if the lawyer individually appeals his or her own furlough. Such an appeal "introduces a new factor into the equation: the lawyer now has a unique interest because he or she has individually challenged the agency on the permissibility of imposing furloughs," the committee said.
The lawyers whose inquiries sparked the opinion anticipate fielding legal questions about the furloughs and advocating for their agencies in individual employees' appeals before the U.S. Merit Systems Protection Board.
They asked whether these activities would violate RPC 1.7(a)(2), which prohibits representation of a client if there's a concurrent conflict of interest, including when the representation is affected by "a personal interest of the lawyer."
Another provision, RPC 1.7(b)(1), prohibits public entities from consenting to representation by a lawyer who has a concurrent conflict of interest.
The committee said that conflicts by full-time government lawyers, "especially those concerning adverse but shared economic interests, must be analyzed differently from conflicts that arise in the private sector."
"Absent unusual circumstances, economic issues that affect government lawyers and employees as a class should not render the lawyer unable to provide legal advice and representation to the government employer about that issue," the committee said.
"Disqualifying every lawyer in the class due to this adverse but shared economic interest deprives the government of the expertise of its own lawyers and affects its ability to operate efficiently."
The committee relied largely on Gormley v. Lan, 88 N.J. 26 (1981), in which an assemblyman, William Gormley, sought to bar Attorney General James Zazzali from any involvement with a proposed constitutional amendment concerning state ownership of tidal lands. He said Zazzali's opposition to the amendment created a conflict of interest.
Chief Justice Robert Wilentz wrote that the court should not limit the Attorney General's Office's broad range of functions, "the product of centuries of experience, constitutional intendment, and legislative will, by imposing strictures that may be entirely appropriate where private counsel is involved."
The committee also relied on a 1982 court ruling allowing the same public defender office to represent criminal co-defendants and a 1992 decision allowing the public defender's office to represent a murder suspect even though it previously represented the victim in an unrelated case.
Government lawyers "routinely provide legal advice and representation on matters that adversely affect the economic interests" of entire classes of government workers, including themselves, and there are no known precedents for "mass disqualification of government lawyers due to an adverse but shared economic interest," the committee said.
Committee vice chairman Ronald Chen, acting dean of Rutgers School of Law-Newark, says the situation is "roughly analogous" to the rule of necessity, which allows a judge to consider a matter even if he or she has an interest in the outcome — if the conflict is shared by every judge and would prevent the case from being heard at all. To disqualify every government attorney touched by the sequester "is simply not practical," he says.
Whether the committee's findings about individual appeals would dissuade lawyers from filing them is "a decision the lawyer has to make," Chen adds. "Lawyers face that [personal decisions that would affect their practices] all the time."
Committee chairman Richard Badolato, a partner at Connell Foley in Roseland, did not respond to a reporter's call and email.