Before 2007, the New Jersey Code of Ethics and the New Jersey Division of State Police Standard Operating Procedure Manual permitted State Police employees, including troopers, to engage in the private practice of law with the Attorney General’s approval. A number of troopers engaged in the practice of law, writing wills, bringing and defending lawsuits, and drafting contracts.
In 2007, the State Ethics Commission for the Department of Law and Public Safety enacted a revised Code of Ethics, which in part essentially prohibits all employees from engaging in the private practice of law in New Jersey or in any other jurisdiction in which they are admitted. A group of trooper-lawyers challenged the Code’s prohibition of troopers’ outside legal employment on several grounds, claiming violations of the Equal Protection component of the Fourteenth Amendment, the procedural due process component of the Fourteenth Amendment’s Due Process Clause, and the Due Process and Equal Protection provisions of the New Jersey Constitution.
The federal Third Circuit Court of Appeals turned away the lawsuit. The Court found that “the State’s decision to single out the legal profession is rationally related to its ethical concerns. The Code provision prohibiting troopers from outside legal practice is far from perfectly crafted. It is simultaneously over-inclusive in that it prohibits all part-time legal work and under-inclusive in that DLPS employees are still permitted to engage in non-legal outside employment where the risk of ethical conflict is high. Nonetheless, the District Court did not err in concluding that the provision withstands rational basis review.”
The Court also found no violation of the trooper-lawyers’ due process rights. The Court reasoned that “the Fourteenth Amendment’s procedural due process component does not protect every benefit in which employees claim an interest. To establish a protectable property interest, a plaintiff must show more than an abstract need or desire for it. He must have more than unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. There is an absence of evidence that the State openly encouraged the Troopers to attend law school for the purpose of attaining secondary employment as lawyers. Further, the combination of the pre-2007 ethics Code, which merely permitted plaintiffs to engage in outside legal employment, and a general education subsidy from the state that plaintiffs used to go to law school was not enough to give rise to a legitimate entitlement to secondary legal employment.”
State Troopers Non-Commissioned Officers Ass’n of New Jersey v. New Jersey, 2010 WL 4318878 (3d Cir. 2010).
This article appears in the January 2011 issue