In Re Advisory Committee on Professional Ethics Opinion 705

Justice RIVERA-SOTO,

dissenting.

In unambiguous terms, the New Jersey Constitution makes clear that “[t]he Supreme Court shall have jurisdiction over the admission to the practice of law and the discipline of persons admitted.” N.J. Const. art. VI, § 2, ¶ 3. In the exercise of that exclusive grant of jurisdiction, we have made clear that “[njeither the Legislature nor the Executive has any power to overrule attorney ethical standards promulgated by this Court[,]” reasoning that, “[ultimately, it is the Court that establishes the ethical standards to which an attorney is held, and neither the Legislature nor the Executive can diminish them.” In re Advisory Comm. on Prof'l Ethics Opinion No. 621, 128 N.J. 577, 591, 608 A.2d 880 (1992).

*59In this case, we are called on to determine which standard of conduct applies — either the Conflict of Interest Law, N.J.S.A 52-.18D-12 to -27, or Rule of Professional Conduct 1.11(c) — when the two are in obvious conflict. Acknowledging this Court’s supremacy in the area of the regulation and discipline of attorneys, the majority nevertheless concludes that, “[bjecause N.J.S.A. 52:13D-17 serves a legitimate governmental purpose and does not improperly encroach on judicial interests, [the majority] defer[s] to the Legislature in the spirit of comity and hold[s] that attorneys formerly employed by the State must comply with both the [Conflict of Interest Law] and the RPCs. Ante, 192 N.J. at 48, 926 A.2d at 840 (2007).

This Court adopted RPC 1.11(c) in the face of the prohibitions already extant in the Conflict of Interest Law and nothing has been advanced as having arisen during the interim to justify the invocation of comity at this juncture. Thus, unless we are to confess error, there is no reason to supersede a Rule of Professional Conduct that was adopted in the face of the pre-existing statutory prohibition. I, therefore, respectfully dissent.

I.

Since 1971, the Conflict of Interest Law has provided, in relevant part, that

[n]o State ... employee ... subsequent to the termination of his office or employment in any State agency, shall represent ... members of the public ... whether by himself or through any partnership, firm or corporation in which he has an interest ... in connection with any cause, proceeding, application or other matter with respect to which such State ... employee ... shall have ... been otherwise substantially and directly involved at any time during the course of his office or employment.
[N.J.S.A. 52:13D-17J

Against that backdrop, and thirty years after the Conflict of Interest Law was adopted, this Court undertook a comprehensive review of the Rules of Professional Conduct. We described that process in detail:

In January 2001, the Supreme Court created an ad hoc Commission on the Rules of Professional Conduct.....The Court directed the Commission to review the *60existing Rules of Professional Conduct in light of the work of the American Bar Association’s Commission on Evaluation of the Rules of Professional Conduct (the “Ethics 2000 Commission”).....
During the ensuing twenty-two months, the Commission — familiarly known as the “Pollock Commission” — met in subcommittees and plenary sessions. It conducted public hearings on the issues before it. In December 2002, the Commission filed a comprehensive report with the Court. The report was published for comment. Given the importance of the issues addressed in the Commission’s recommendations, the Court provided for an extended comment period____Re-
sponses were received from the New Jersey State Bar Association, the Attorney General’s Division of Law, the New Jersey Office of Government Integrity, the Pennsylvania and Philadelphia Bar Associations, the New Jersey Lawyers’ Fund for Client Protection, the Office of Attorney Ethics, and several individuals.
On April 23, 2003, the Supreme Court conducted a public hearing on the reports of the Pollock Commission and the Ad Hoc Committee on Bar Admissions. In addition to some of those who had provided written comments, a representative of the Attorney General’s Division of Criminal Justice participated. The Court invited the Commission to reply to the comments that had been made.
The Commission’s comments completed the record. In reviewing each recommendation of the Pollock Commission, the Court considered the proposal in the context of the language of and policies underlying the existing Rules of Professional Conduct, pertinent case law, and the comments that had been submitted. During the review process, the Court developed a deep appreciation for the amount of time and effort that the Commission and its staff devoted to their assignment. Although the Court did not adopt every recommendation of the Commission, its decisions were solidly grounded in the knowledge that the Pollock Commission had given all of the issues confronting it both thoughtful and detailed consideration.....
Among the Court’s actions are the following:
4. Codified in RPC 1.11 the existing policy of the Office of the Attorney General that prohibits former government lawyers from serving certain clients for six months immediately following the termination of the lawyer’s government serviced] [Supreme Court of New Jersey, “Administrative Determinations in Response to the Report and Recommendation of the Supreme Court Commission on the Rules of Professional Conduct” (Sep. 10, 2003) (Administrative Determinations), reprinted in Kevin H. Michels, New Jersey Attorney Ethics — The Law of New Jersey Lawyering 1143-44 (2007)-]

II.

It was in that context — one where a commission was appointed, public hearings were held, a “comprehensive report” was submitted, the opportunity for meaningful comment was provided, signifi*61cant comments were in fact received and evaluated, and this Court held its own public hearing — that RPC 1.11 was significantly amended. In addition to codifying the Attorney General’s policy of a six-month bar of a former government lawyer representing private clients “when the interests of the private party are materially adverse to the appropriate government agency,” RPC 1.11(a)(3), the Pollock Commission recommended, and this Court adopted, new RPC 1.11(c). It provides that, even if a former government lawyer is disqualified pursuant to RPC 1.11(a) or (b), the former government lawyer’s law firm is not disqualified “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(e). In doing so, this Court specifically noted that “[t]he Commission also favored screening to prevent the attribution of personal conflicts to a lawyer who has served as a government lawyer or public officer and, therefore favored the adoption of the ABA Commission’s proposed MRPC 1.11 with some modification.” Administrative Determinations, supra, reprinted in Michels, supra, at 1159. The Court adopted those recommendations and RPC 1.11(c), effective January 1,2004, came into being.

Four years later, and invoking principles of comity, the majority now overrules RPC 1.11(c) insofar as it provides a safe harbor for those law firms that hire former government lawyers. Comity, however, is not a mandatory concept. We recently explained that “ ‘[cjomity is practiced when a court of one jurisdiction voluntarily restrains itself from interfering in a matter falling within the purview of a court of another jurisdiction!],]’ a concept ‘grounded in notions of accommodation and good-neighborliness [that] is a necessary expedient to preserve the delicate balance of power and harmonious relations among the various sovereigns of our federalist system[,]’ ” Vergopia v. Shaker, 191 N.J. 217, 238 n. 3, 922 A.2d 1238 (2007) (Rivera-Soto, J., dissenting) (quoting Thompson v. City of Atl. City, 190 N.J. 359, 382, 921 A.2d 427 (2007)).

*62If there was a time for this Court to “voluntarily restraint] itself from interfering in a matter falling within the purview of’ the Legislature, that time has passed: it was in September 2003, when this Court adopted RPC 1.11(c). It must be underscored that the adoption of RPC 1.11(c) was neither by inadvertence, nor by happenstance, nor as an afterthought. As noted, a two-yearlong exhaustive process for the revamping of our Rules of Professional Conduct was undertaken. That process included the appointment of a blue-ribbon commission; the holding of public hearings; the receipt of comments; the presentation of a “comprehensive” report; an additional public hearing and comment before this Court; and the issuance of detailed Administrative Determinations. These steps demonstrate beyond question that the adoption of RPC 1.11(c) was the result of both a deliberate and deliberative effort to “favor[ ] screening to prevent the attribution of personal conflicts to a lawyer who has served as a government lawyer or public officer” and, within limits, to bring New Jersey’s disciplinary system in line with the American Bar Association’s ethical updates. Administrative Determinations, supra, reprinted in Michels, supra, at 1159.

Stated differently, nothing — absolutely nothing — has been presented to this Court to justify reneging on the common sense provisions of RPC 1.11(c). Nothing — absolutely nothing — has been tendered to demonstrate that the rationale that supported the adoption of that Rule is no longer valid. Nothing — absolutely nothing — has been presented to show that the Rule is somehow deficient in its application. Nothing — absolutely nothing — has been offered to justify deference today when we affirmatively chose to act four short years ago. Because the Rules of Professional Conduct are “a road map for the conduct of attorneys to guide them in their relationships with their clients, other attorneys, the courts, and the public[,]” In re Greenberg, 155 N.J. 138, 152, 714 A.2d 243 (1998), the adoption and later repeal of Rules on which lawyers and clients have relied are to be done in limited circumstances and then only for the best of reasons. In the *63absence of any reasons for our actions today, they appear arbitrary.

III.

The Advisory Committee on Professional Ethics concluded that “the [Conflict of Interest Law] is more restrictive and the Court’s ethics rule in RPC 1.11(c) is more liberal, allowing attorneys to proceed in proper cases by screening and notification.” Advisory Comm, on Prof'l Ethics Opinion No. 705, 184 N.J.L.J. 390 (May 15, 2006). It thus concluded that “the Court’s ethics rule should prevail in this case, absent a decision by the Court to defer to the statute under principles of comity.” Ibid. Relying on nothing in this record, the Court has determined to invoke comity and provide that the Conflict of Interest Law trumps RPC 1.11(c). I cannot agree. For the reasons expressed above, I respectfully dissent.

For reversal — Chief Justice ZAZZALI and Justices LaVECCHIA, ALBIN, WALLACE, and HOENS — 5.

For affirmance — Justice RIVERA-SOTO — 1.