Must a lawyer tell a client that the lawyer is seeking or considering a job with someone whose interests are adverse to that client?

Plain-English summary

The committee addressed whether, and when, a lawyer must disclose to a current or prospective client that the lawyer is seeking or considering future employment with a person or entity whose interests are adverse to that client (for example, a defense lawyer applying to a prosecutor's office, or a lawyer moving between firms or to a corporate or government position). DR 5-101(A) bars a lawyer from accepting employment, absent the client's consent after full disclosure, where the lawyer's independent professional judgment will be or reasonably may be affected by the lawyer's own financial, business, property, or personal interests. The committee concluded that a focused and concrete interest in specific future employment with an adverse party is such an interest, because it "reasonably may" affect the lawyer's judgment, noting the rule does not require proof that judgment will be affected.

The committee identified the ways the conflict can operate: the lawyer might be tempted to act to benefit the prospective employer, might have a personal stake in an outcome that affects the value of the future job, or might consciously or unconsciously adjust behavior because the adverse party is evaluating the lawyer, all to the client's potential detriment, reinforced by Canon 9's concern with the appearance of impropriety. On timing, while declining to set a single bright line, the committee held that disclosure is required no later than when an offer of conflicting employment is extended and not promptly declined, and that the obligation often arises earlier, when the lawyer makes an affirmative application or seriously considers pursuing a position in response to an expression of interest; routine activities like sending resumes broadly or attending job fairs do not.

The committee held the principle applies beyond litigation to any representation involving professional interaction between lawyers with adverse clients, and applies when the conflicting interest arises after the representation has begun, in which case the lawyer must disclose and seek consent, postpone the job search until the matter ends, or withdraw without prejudice; if the lawyer concludes the interest will in fact compromise independent judgment or loyalty, disclosure and consent are not enough and the lawyer should decline or withdraw (EC 5-1, EC 5-2). The committee also questioned whether DR 5-101(A) personal-interest conflicts should be automatically imputed to associated lawyers under DR 5-105(D), inviting reconsideration.

Currency note

This opinion was issued in 1991, 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. Personal-interest conflicts are now addressed by Rule 1.7(a)(2), and the imputation rules have been revised. 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 lawyer tell a client about a job search with the other side?

A: The committee concluded that where the lawyer's interest in specific future employment with an adverse party is focused and concrete, DR 5-101(A) requires disclosure and the client's consent.

Q: When does the duty to disclose arise?

A: The committee concluded disclosure is required no later than when an unaccepted offer is outstanding, and often earlier, when the lawyer makes an affirmative application or seriously considers a position in response to an expression of interest.

Q: Does sending out resumes trigger the duty?

A: No. The committee concluded that routine activities such as sending resumes broadly, using a recruiter, or attending job fairs do not reflect the focused, concrete interest that creates a conflict.

Q: What if the conflict arises mid-representation?

A: The committee concluded the lawyer must disclose and seek consent, postpone the job search until the matter is complete, or withdraw without prejudice; if the interest will actually compromise the lawyer's judgment or loyalty, consent is not enough.

Background and rules framework

The opinion applied New York Code DR 5-101(A) (declining employment where the lawyer's own interests may affect judgment), with the imputation rule DR 5-105(D), the withdrawal provisions DR 2-110(C), and EC 5-1 and EC 5-2 on undivided loyalty; it also noted DR 9-101(B) on government lawyers negotiating private employment. The analysis corresponds to ABA Model Rule 1.7 (conflicts of interest, including the lawyer's own personal interests), which the opinion compared to former Model Rule 1.7(b).

Citations and references

Rules of Professional Conduct:

• New York Code DR 5-101(A), DR 5-105(B), DR 5-105(D), DR 2-110(C); EC 5-1, EC 5-2 (applied in the opinion)
• MR 1.7 (conflicts of interest)

Other opinions cited:

• NYC Bar Opinion 79-37 (1980): law student must disclose accepting a job with the prosecutor's office handling a case against the student's client
• D.C. Bar Opinion 210 (1990): disclosure required when a defense lawyer takes the first active step toward a U.S. Attorney position
• San Diego Opinion 1989-4 (1990); N.Y. State 579 (1987): disclosure of a lawyer's adverse personal or financial interest

See also

• NYC Bar Formal Op. 1994-1: In-House Lawyer's Discrimination Suit Against a Former Employer
• NYC Bar Formal Op. 1990-4: Conflicts in a Volunteer Pro Bono Adjudication Program

Source

• Landing page: https://www.nycbar.org/reports/formal-opinion-1991-1/