Can volunteer lawyers serve as administrative judges or mediators for an agency and also represent parties before it, and can a firm represent complainants against the City it also serves?

Plain-English summary

The New York City Commission on Human Rights proposed a pro bono program using volunteer private lawyers to represent complainants, and to serve as administrative law judges and mediators, in proceedings before the Commission. Because many volunteers (and their firms) also appear before the Commission, represent the City, or litigate against it, the committee addressed three sets of conflict questions under the Code of Judicial Conduct and Canons 4 and 5 of the Lawyer's Code.

First, on volunteers serving as administrative law judges or mediators: the committee explained that the result depends on whether the volunteer is classified as a "part-time judge" or a "judge pro tempore." A part-time judge may not practice law in the court in which the judge serves, and under DR 5-105(D) that disqualification extends to the judge's firm; a judge pro tempore is barred only from matters in which the judge served and related matters, and the firm is not broadly disqualified. The committee concluded that frequent, repeated service points toward part-time-judge treatment (firm-wide disqualification), while occasional, sporadic service points toward pro tempore treatment, and that volunteer mediators should be treated under the same framework, looking to how often they serve and how closely they work with Commission staff.

Second, on representing both complainants and respondents, the committee found no per se bar but treated this as a positional or issues conflict under DR 5-105. Drawing on the proposed Restatement, it distinguished an argument with mere indirect precedential effect on another client (no conflict) from arguing both sides of an unsettled point before the same tribunal (a conflict), and required each volunteer to make an independent determination and decline or withdraw, absent consent, where concurrent representation would materially and adversely affect a client.

Third, on representation involving the City, the committee concluded that a lawyer generally may not represent a complainant against a City agency the lawyer's firm concurrently represents, because of the duty of undivided loyalty barring suit against a current client, subject to the DR 5-105(C) consent exception the committee continued to apply in the litigation context. It emphasized that each City department or agency is treated as a distinct client for this purpose, so the conflict turns on which agency is involved.

Currency note

This opinion was issued in 1990, 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, and before the corresponding revisions to the judicial-conduct rules. Conflicts are now addressed by Rule 1.7, and the duties of a lawyer who serves as a third-party neutral or adjudicative officer by Rules 1.12 and 2.4. 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: If a lawyer volunteers as an administrative law judge, can the lawyer's firm still appear before that agency?

A: The committee concluded it depends on classification: a part-time judge's firm is disqualified under DR 5-105(D), while a judge pro tempore's firm is not broadly disqualified, with frequency of service the key factor.

Q: Are volunteer mediators treated the same way?

A: The committee concluded that, to preserve the appearance of fairness, mediators should be analyzed under the same part-time-judge versus pro tempore framework, looking also at how closely the mediator works with agency staff.

Q: Can one firm represent both complainants and respondents before the agency?

A: The committee found no per se bar but required a case-by-case positional-conflict analysis under DR 5-105, with the line drawn at arguing both sides of an unsettled point before the same tribunal.

Q: Can a firm represent a complainant against a City agency it also represents?

A: The committee concluded generally not, because of the duty of undivided loyalty barring suit against a current client, treating each City agency as a distinct client and applying the DR 5-105(C) consent exception.

Background and rules framework

The opinion applied New York Code DR 5-105(A), (B), (C), and (D) (declining or continuing conflicting employment and firm-wide imputation) and DR 9-101(B) (former government lawyers), together with the Code of Judicial Conduct's treatment of part-time judges and judges pro tempore and 22 NYCRR 100.5(f). The analysis corresponds to ABA Model Rule 1.7 (conflicts of interest) and Model Rule 1.12 (former judge, adjudicative officer, or neutral).

Citations and references

Rules of Professional Conduct:

• New York Code DR 5-105(A), DR 5-105(B), DR 5-105(C), DR 5-105(D), DR 9-101(B); EC 5-15, EC 5-16; 22 NYCRR 100.5(f) (applied in the opinion)
• MR 1.7 (conflicts of interest); MR 1.12 (former judge, adjudicative officer, or neutral)

Cases:

• Cinema 5, Ltd. v. Cinerama, Inc., 528 F.2d 1384 (2d Cir. 1976), bar on simultaneous adverse representation

Other opinions cited:

• N.Y. City 814 (1956); N.Y. State 365 (1974): applying the judicial code to quasi-judicial officers
• N.Y. City 894 (1978); N.Y. State 447 (1976): treating each government agency as a distinct client
• N.Y. City 80-7: applying the DR 5-105(C) consent exception in litigation

See also

• NYC Bar Formal Op. 1994-2: Part-Time Administrative Law Judge and a Referral Fee
• NYC Bar Formal Op. 1991-1: Disclosing a Lawyer's Adverse Job Search

Source

• Landing page: https://www.nycbar.org/reports/formal-opinion-1990-4/