Must a government agency lawyer who also represents a discrimination complainant disclose information adverse to the complainant that the complainant confided?

Plain-English summary

A staff attorney at a government agency that receives, investigates, and prosecutes employment-discrimination complaints learned from a complainant, after a probable-cause finding, information that (if an attorney-client relationship existed) would be a confidence or secret and that was materially adverse to the complainant's case. The lawyer asked whether he must disclose the adverse information to the employer's attorney (i) when, by statute, he is counsel for both the complainant and the agency, and (ii) when he is counsel only for the agency. The committee answered the first question no and the second yes, subject to conditions.

On the first question, the committee concluded that when the lawyer represents both the complainant and the agency, he need not disclose the adverse information, provided he is not required to make misleading or false representations to the tribunal. The complainant confided in the lawyer within an attorney-client relationship, and DR 4-101(B) bars revealing or using a client's confidences and secrets to the client's disadvantage, including communications harmful to the client's case. The committee held that EC 7-14's special duty of a government lawyer to seek justice and develop a full and fair record does not require a government lawyer who also represents a private citizen to disclose confidences to the adversary, because there the lawyer's obligations to the individual client are paramount and the lawyer is not functioning primarily on behalf of the sovereign as a prosecutor would. It qualified this, however: where nondisclosure would directly or indirectly mislead the tribunal, the lawyer should seek the client's consent to disclose under the candor principles of DR 7-102(A), and if consent is refused, should seek to withdraw; the confidence exception to DR 7-102(B)(1) does not relieve the lawyer of the duty to be candid with the tribunal.

On the second question, the committee concluded that, assuming the parties fairly understood the lawyer acted only for the agency, communications to the lawyer are not privileged, and the government lawyer's duty to develop a full and fair record and to seek justice prevails, so the information should be disclosed. But where it is clear the complainant nonetheless viewed the lawyer as his counsel and the lawyer acted accordingly, the information was communicated within an attorney-client relationship and should not be disclosed, again subject to the limitation that no misleading statements be made to the tribunal; in that event, agency counsel should withdraw under DR 2-110(C)(1)(b) and no new agency counsel be substituted, even though that may require the complainant to retain private counsel or proceed pro se, a result the committee said was compelled by the irresolvable conflict the complainant's own conduct created.

Currency note

This opinion was issued in 1987, before New York replaced the Code of Professional Responsibility (the Disciplinary Rules cited here) with the New York Rules of Professional Conduct, effective April 1, 2009. Confidentiality is now governed by Rule 1.6, candor toward the tribunal by Rule 3.3, the special responsibilities of government lawyers by Rules 1.11 and 3.8, and withdrawal by Rule 1.16. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Must a government lawyer who also represents the complainant disclose information adverse to the complainant?

A: The committee concluded no; the lawyer must preserve the complainant's confidences under DR 4-101(B), provided he makes no misleading or false statement to the tribunal.

Q: Does the government lawyer's duty to seek justice override confidentiality here?

A: The committee concluded that EC 7-14's duty does not require a government lawyer who also represents a private citizen to disclose the client's confidences to the adversary, because the duties to the individual client are paramount in that role.

Q: What if the lawyer represents only the agency, not the complainant?

A: The committee concluded the duty to develop a full and fair record requires disclosure, assuming the parties fairly understood the lawyer acted only for the agency so the communications were not privileged.

Q: What happens if nondisclosure would mislead the tribunal?

A: The committee concluded the lawyer must seek the client's consent to disclose, and if it is refused, must seek to withdraw; the confidence exception to DR 7-102(B)(1) does not excuse a lack of candor to the tribunal.

Background and rules framework

The opinion applied New York Code DR 4-101 and DR 4-101(B) (confidences and secrets), DR 7-102(A) (candor to the tribunal; not concealing what law requires or using false evidence), DR 7-102(B)(1) (rectifying a client's fraud, with the confidence exception), and DR 2-110(C) (permissive withdrawal), informed by EC 7-14's duty of a government lawyer to seek justice. These correspond to ABA Model Rule 1.6 (confidentiality), Model Rule 3.3 (candor toward the tribunal), and Model Rule 1.11 (special conflicts of former and current government officers and employees).

Citations and references

Rules of Professional Conduct:

• New York Code DR 4-101(B), DR 7-102(A), DR 7-102(B)(1), DR 2-110(C); EC 7-14 (applied in the opinion)
• MR 1.6 (confidentiality); MR 3.3 (candor toward the tribunal); MR 1.11 (government lawyers)

Cases:

• United States v. Demauro, 581 F.2d 50 (2d Cir. 1978), when communications to an agency lawyer are not privileged

Other opinions cited:

• N.Y. City 82-17; N.Y. City 82-39: client communications protected as secrets
• Nassau County Ops. 82-5, 82-6: duty of confidentiality owed to the client, not the fee-payer
• N.Y. State 454 (1976): a withdrawn lawyer's disclosure obligations

See also

• NYC Bar Formal Op. 1990-2: Disclosing a Client's Secret When Required by Law
• NYC Bar Formal Op. 1988-8: Contacting the Head of a Represented Government Agency

Source

• Landing page: https://www.nycbar.org/reports/formal-opinion-1987-3/