When a government lawyer represents an agency, who is the client, and when can the lawyer also represent the agency's officials or employees in a civil case?
Apply this to your situation
This page answers the general question as of 2004. Ezel answers yours: whether it's allowed on your facts, under the current New York Rules of Professional Conduct, with citations.
Plain-English summary
The opinion addresses conflicts of interest a government lawyer faces in civil litigation. It starts from the point that government lawyers are bound by the same rules that govern any attorney-client relationship, but the conflict questions are often more complex because the answers turn on the statute or charter that establishes the government law department, not on the disciplinary rules alone.
On the identity of the client, the opinion adopts the entity-representation approach: for conflicts purposes the agency is the client, and where a government is organized into multiple departments or agencies, each is generally treated as a distinct client. The opinion concludes that a government law department should avoid representing two agencies whose interests conflict, though nothing bars the lawyer from trying to mediate a common position between agencies with differing interests.
When a government lawyer also represents an individual official or employee in their personal capacity (as several federal and New York statutes authorize), that employee becomes a represented client, not a mere constituent. The lawyer must screen for conflicts under DR 5-105 at the outset, apply the "disinterested lawyer" test of DR 5-105(C), and obtain each client's consent after full disclosure. The opinion notes that in many cases (for example, where the agency may argue the employee acted outside the scope of authority) a single lawyer cannot competently represent both, and a non-waivable conflict surfacing in a privileged interview can disqualify the lawyer from the agency representation as well, subject to possible screening within a large law department.
For unrepresented constituents (fact witnesses, employees being prepared for depositions), DR 5-109 requires the lawyer to explain that the lawyer represents the organization and not the individual, and DR 7-104(A)(2) bars giving them legal advice other than to secure counsel where their interests may conflict. When a constituent's wrongdoing comes to light, DR 5-109(B) directs the lawyer to proceed in the best interest of the organization, which for a government lawyer can include referral to a higher authority such as the attorney general.
In practice
Under the New York Code as it stood at the time, the opinion holds that a government lawyer in civil litigation represents the agency as an entity; treats separate agencies as separate clients for conflict purposes; and may take on personal representation of an official only after a DR 5-105 conflict analysis and informed consent. For unrepresented constituents the lawyer's role is limited to clarifying that the lawyer represents the agency and advising the individual to obtain independent counsel where interests may diverge.
This opinion applies the former New York Code of Professional Responsibility (DR/EC numbering). New York replaced the Code with the Rules of Professional Conduct effective April 1, 2009; the entity-client and constituent provisions of DR 5-109 now map to Rule 1.13, the conflict provisions of DR 5-105 to Rules 1.7 and 1.10, and the dealings-with-unrepresented-persons provision of DR 7-104(A)(2) to Rule 4.3. Verify the current rule text before relying on any specific requirement.
Common questions
Q: Who is a government lawyer's client, the agency or the public?
A: For conflicts purposes the opinion treats the agency as the client. It declines to adopt the idea that the government lawyer represents "the public" or "the public interest" at large, following the Restatement's preference for treating the respective agencies as the clients.
Q: Are separate government agencies separate clients for conflict checks?
A: Generally yes. The opinion concludes that where a government is divided into departments or agencies, each should be treated as a distinct client, so representing two agencies with conflicting positions from the same law department is to be avoided.
Q: Can a government lawyer also represent an agency employee personally?
A: Yes, where a statute authorizes it, but only after applying DR 5-105: the lawyer must conclude a disinterested lawyer would find joint representation proper and obtain each client's informed consent. Where the agency and the employee may take adverse positions (such as arguing the employee acted outside the scope of authority), the test often will not be met.
Q: What can a government lawyer tell an unrepresented agency employee?
A: The lawyer must explain under DR 5-109(A) that the lawyer represents the agency, not the employee. Under DR 7-104(A)(2) the lawyer may not give the employee legal advice other than to secure counsel where the employee's interests may conflict with the agency's; the opinion adds that the lawyer may always tell the employee not to testify falsely.
Q: What must a government lawyer do about an employee's wrongdoing?
A: DR 5-109(B) directs the lawyer to act as reasonably necessary in the organization's best interest, which can include asking reconsideration, obtaining a separate legal opinion, or referring the matter to a higher authority (for a government lawyer, potentially the attorney general). Resignation under DR 2-110 is a last resort.
Background and rules framework
The opinion interprets the former New York Code provisions on entity representation (DR 5-109, the analog of Model Rule 1.13), simultaneous-representation conflicts (DR 5-105, the analog of Model Rules 1.7 and 1.10), and dealings with unrepresented persons (DR 7-104(A)(2), the analog of Model Rule 4.3). It stresses that for government lawyers these rules operate against a background of enabling statutes (for example, 28 C.F.R. Section 50.15, N.Y. Public Officers Law Section 17, N.Y. General Municipal Law Section 50-k) that determine who the client is, who may consent, and who controls the privilege. The opinion expressly does not address "revolving door" successive-government-employment conflicts under DR 9-101(B).
Citations and references
Rules of Professional Conduct:
- MR 1.13 (organization as client) / NY DR 5-109
- MR 1.7, MR 1.10 (concurrent conflicts; imputation) / NY DR 5-105
- MR 4.3 (dealing with unrepresented persons) / NY DR 7-104(A)(2)
- MR 1.11 (government-lawyer conflicts) / NY DR 9-101(B) (revolving door, not addressed)
Statutes:
- 28 C.F.R. Section 50.15 (representation of federal employees)
- N.Y. Public Officers Law Sections 17, 18 (defense of state employees)
- N.Y. General Municipal Law Section 50-k (defense of New York City employees)
Cases:
- Rodick v. City of Schenectady, 1 F.3d 1341 (2d Cir. 1993), conflict representing both officer and municipality in a Section 1983 action
- Dunton v. County of Suffolk, 729 F.2d 903 (2d Cir. 1984), disqualifying conflict where county argued officer acted ultra vires
Other opinions cited:
- ABCNY Formal Op. 2004-02: representing corporations and their constituents in governmental investigations
- ABA Formal Op. 97-405: conflicts in representing government entities
- NYSBA Op. 629: consent by government agencies to cure conflicts
See also
- NYC Bar Ethics Op. 2008-02: Corporate Legal Departments and Conflicts
- NYC Bar Ethics Op. 2025-1: Ethical Responsibilities of Lawyers Representing Government
- NY State Bar Op. 629: Lawyer Conflicts Among Governmental Entities
- NY State Bar Op. 1029: Conflicts for Government Lawyers With Prior Private Clients
- ISBA Ethics Op. 12-12: Defending a Government Entity in a Matter Brought by a Law Firm Partner
Source
Get today's answer for your situation
You just read a 2004 opinion on this question. Ezel checks the current New York Rules of Professional Conduct and answers your specific situation, with citations.
Opens in Ezel Pro. Every answer cites the rules it relies on.