If I own an apartment in a co-op or condo, can I serve as the building's lawyer, or represent a fellow tenant, the board, or a buyer in matters involving the building?

Plain-English summary

Many lawyers own apartments in cooperative or condominium buildings and are asked to provide legal help with the building's affairs, the corporation, or fellow tenants. The committee issued this opinion to alert the bar to the conflict-of-interest questions Canon 5 of the Code of Professional Responsibility raises in that setting. The governing principle is that a lawyer must exercise independent professional judgment solely for the client and free of compromising influences, and DR 5-101(A) bars accepting employment, without the client's consent after full disclosure, where the lawyer's own financial, business, property, or personal interests may reasonably affect that judgment. The committee applied an objective "reasonable probability" standard and directed that doubts be resolved against the representation.

For a lawyer-tenant who is also an officer, director, or counsel of the cooperative, the committee found no general prohibition on serving as both director and counsel, but it identified added duties: the lawyer may not use the board position to procure work for the firm, may not participate in the board's decision to retain the lawyer, and must obtain the corporation's informed consent. Even with consent, the lawyer should decline where there is a material risk the dual role will compromise independence, and conflicts are especially likely in litigation between the cooperative and another tenant.

When representing a co-tenant, a purchaser, or both a tenant and the cooperative in a sale, the committee analyzed the multiple-representation limits of DR 5-105: the lawyer may proceed only if it is "obvious" the lawyer can adequately represent each interest and each client consents after full disclosure, with the "obviousness" test harder to meet the more there is to negotiate. Where a co-tenant seeks concessions from the board, or asserts a claim against the cooperative the lawyer also serves, the committee concluded the conflict could never be cured by consent.

For a lawyer-tenant representing a tenants' committee responding to a conversion plan, the committee concluded the representation is not inherently improper but requires full disclosure and consent, with a caution that the lawyer's financial interest may foreseeably diverge from other tenants, that the committee's membership may shift, and that declining at the outset may be the better course.

Currency note

This opinion was issued in 1988, 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. Conflicts of interest are now addressed by Rule 1.7, business transactions with clients by Rule 1.8(a), and confidentiality by Rule 1.6. 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: Can a lawyer who owns a co-op apartment also serve as the cooperative's counsel?

A: The committee concluded there is no general bar to serving as both director and counsel, but the lawyer must obtain the corporation's consent after full disclosure under DR 5-101(A) and should decline where a material risk of impaired judgment exists, such as litigation between the cooperative and another tenant.

Q: Can the lawyer-tenant represent a neighbor against the building?

A: The committee concluded the lawyer may represent a co-tenant only after determining whether the lawyer's own property interests would impair judgment and obtaining informed consent; if the lawyer is also the cooperative's counsel or a board member, fiduciary duties to the cooperative may make the representation impermissible.

Q: Can one lawyer represent both the seller and the cooperative in an apartment sale?

A: The committee concluded this is permissible only if it is "obvious" the lawyer can adequately represent each interest and both consent after full disclosure under DR 5-105(C), and that where the seller is aligned with the buyer in seeking concessions from the cooperative, the conflict can never be cured by consent.

Q: Can a lawyer who rents in a building represent the tenants' committee on a conversion plan?

A: The committee concluded this is not inherently unethical if the lawyer makes full disclosure and obtains consent under DR 5-101(A), but cautioned that the lawyer's interests may foreseeably diverge from other tenants and that declining at the outset may be the better practice.

Background and rules framework

The opinion applied New York Code DR 5-101(A) and (B) (the lawyer's own interests and the lawyer-as-witness bar), DR 5-104(A) (business transactions with a client), DR 5-105(A) through (D) (declining, continuing, and imputing conflicting multiple employment), and DR 4-101 (client confidences and secrets), all under Canon 5's requirement of independent professional judgment. These correspond to ABA Model Rules 1.7 (conflicts of interest) and 1.8 (business transactions and other prohibited dealings with clients).

Citations and references

Rules of Professional Conduct:

• New York Code DR 5-101(A), DR 5-101(B), DR 5-104(A), DR 5-105(A)-(D), DR 4-101, DR 7-101(A); EC 5-1, EC 5-2, EC 5-3, EC 5-15, EC 5-18 (applied in the opinion)
• MR 1.7 (conflicts of interest); MR 1.8(a) (business transactions with clients)

Cases:

• Demas v. 325 West End Avenue Corp., 127 A.D.2d 475 (1st Dep't 1987), tenant suit over apartment alteration
• Bernheim v. 136 East 64th Street Corp., 128 A.D.2d 434 (1st Dep't 1987), tenant suit over rejected buyer
• Goldman v. Kane, 3 Mass. App. Ct. 336, 329 N.E.2d 770 (1975), need for independent advice in lawyer-client transactions

Other opinions cited:

• N.Y. State 589 (1988): lawyer serving as both director and counsel to a corporation
• N.Y. State 162 (1970); N.Y. State 38 (1966): dual representation and the "obviousness" test
• N.Y. City 81-4; N.Y. County 615 (1973): ministerial dual representation with consent

See also

• NYC Bar Formal Op. 1988-7: Mortgage on a Client's Home to Secure a Legal Fee
• NYC Bar Formal Op. 1990-4: Volunteer Judge and Mediator Conflicts

Source

• Landing page: https://www.nycbar.org/reports/formal-opinion-1988-5/