State Troopers Have No Right To Side Jobs Practicing Law

In 2007, the State Ethics Commission for the New Jersey Department of Law and Public Safety enacted a revised Code of Ethics. The new Code prohibited troopers from engaging in the outside practice of law in New Jersey or in any jurisdiction in which the trooper might be admitted to practice.

The revised Code of Ethics was the product of an effort in all state agencies to reform ethics rules. Where the former Code of Ethics had banned “moonlighting” as a private lawyer for Assistant and Deputy Attorneys General, the new Code extended this provision to troopers as well.

A group of 21 state troopers filed a lawsuit against the State, contending that the ban on moonlighting as an attorney violated their equal protection rights. A federal district court in New Jersey dismissed the lawsuit. The Court found that because the ban on moonlighting as an attorney did not involve a “fundamental right” or treat a “subject classification” differently, the State need only show a “rational basis” for the rule. Under the “rational basis test,” a government regulation “must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.”

The Court easily found such a “rational basis” for a ban on moonlighting as an attorney: “The troopers in this case have chosen two very admirable professions. On one hand, they are tasked with protecting the citizens of New Jersey and upholding its laws at great personal sacrifice to themselves, and many times, to their families. On the other hand, they have sworn to uphold the federal and state constitutions and seek justice for their clients. While the duties and obligations of both types of employment undoubtedly cross over into the other, there are times where the private practice of law and the obligations of the Division of State Police could come into conflict and change the public’s perception of public servants and attorneys. The Court finds that the State’s interest in guarding against potential conflicts of interest and preserving the public trust are legitimate governmental objectives.

“While it could be argued that a wholesale prohibition on the practice of law would appear so over inclusive as to border on irrationality, even that would not render the law unenforceable. Plaintiffs must demonstrate that no conceivable set of facts could support a rational basis for the revised Code of Ethics. The State could have reasonably believed that the practice of law would place officers in a more precarious ethical situation than other types of employment, i.e., private investigation work or accounting. The State could conceivably have thought that the practice of law was the most prevalent of the secondary professions in the Division of State Police, and that the practice of law required special attention in the revised Code. That type of decision, even if not foolproof, has been upheld in the past.”

State Troopers Non-Commissioned Officers Association of New Jersey v. New Jersey, 643 F. Supp. 2d 615 (D. N.J. 2009).

This article appears in the February 2010 issue