NYSBA 2019-07-08

Can a lawyer keep a private practice while serving as town supervisor, and represent private clients located in or appearing before the town?

Short answer: Yes, subject to other law, but the opinion holds the lawyer may not represent any private client in a matter involving the town, may not act officially on matters handled privately, may not negotiate employment with parties before the town, may not use the office for a client's advantage, and may not use confidential government information against a person.

Disclaimer: Advisory only. Not binding precedent.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked at the bottom of this page) is the authoritative source for any reliance.

NYSBA Ethics Opinion 1169: Town Supervisor and the Private Practice of Law

Short answer: The opinion concludes that, subject to any law or regulation governing the office, a lawyer serving as town supervisor may keep a private practice and represent private clients located within the town, but may not represent any private client in a matter involving the town, may not participate officially in a matter the lawyer handled personally and substantially in private practice, may not negotiate private employment with parties before the town, may not use the office to gain a client special treatment or to influence a tribunal, and may not use confidential government information to a person's material disadvantage.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York State Bar Association's view of New York's Rules of Professional Conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.

Plain-English summary

A lawyer in private practice in a town, who regularly represents business clients located within the municipality, wants to run for town supervisor, an office whose powers could affect some of those clients. The lawyer asked whether he may continue representing private clients in the town while serving as supervisor, whether he may represent clients before the town's boards and court, and what other ethical limits would apply.

The committee analyzes Rule 1.11, which governs a lawyer currently serving as a public officer. It stresses at the outset that any law or regulation governing a current official, such as the General Municipal Law, Public Officers Law, Municipal Home Rule Law, or Town Law and any local code of ethics, takes priority over the Rules and must be researched first; the committee's jurisdiction is limited to interpreting the Rules. Under Rule 1.11(d), the supervisor must recuse from participating, even in a non-legal government role, in any matter he handled personally and substantially as a private lawyer (subject to a narrow rule-of-necessity exception), and may not negotiate private employment with a party to a matter in which he is participating personally and substantially. Drawing on N.Y. State 510 (1979) and 431 (1976), the committee explains that because the supervisor is primarily charged with preserving town funds, he cannot represent any private client whose interests may be adverse to the town; the disqualification rules exist to prevent both actual and apparent advantage from a client retaining a public official.

Under Rule 1.11(f), the supervisor may not use the office to obtain a special advantage in legislative matters against the public interest, to influence a tribunal in favor of a client, or to accept anything of value to influence official action, including through the guise of legal fees. Under Rule 1.11(c), if the supervisor has confidential government information about a person, he may not represent a private client with adverse interests in a matter where that information could be used to the person's material disadvantage; this applies even to information acquired by happenstance and does not extend to merely imputed information.

In practice

Under this opinion, a lawyer who becomes town supervisor may continue a private practice and may represent clients located in the town, but must first confirm that no municipal statute, code, or local ethics rule (which would override the Rules) prohibits the arrangement. The opinion holds the lawyer may not represent a private client in any matter involving the town, may not act in his official role on a matter he handled personally and substantially as a private lawyer, may not negotiate private employment with a party before the town in such a matter, may not use the office to gain a client special treatment or sway a tribunal, and may not use confidential government information to a person's material disadvantage.

Common questions

Q: Can a lawyer serving as town supervisor keep representing private clients in the town?

A: Per the opinion, yes, subject to controlling municipal law, but not in any matter involving the town. The supervisor, charged with preserving town funds, may not represent a private client whose interests may be adverse to the town.

Q: What does Rule 1.11(d) require of the supervisor?

A: Per the opinion, the supervisor must recuse from official participation in any matter he handled personally and substantially as a private lawyer (with a narrow rule-of-necessity exception) and may not negotiate private employment with a party to a matter in which he is participating personally and substantially.

Q: Does local government law matter here?

A: Per the opinion, yes, and first. The committee says statutes and codes governing current officials (General Municipal Law, Public Officers Law, Municipal Home Rule Law, Town Law, local ethics codes) override the Rules and must be researched before the Rule 1.11 analysis; the committee does not interpret them.

Q: How does the confidential-information limit work?

A: Per the opinion, under Rule 1.11(c) the supervisor may not represent a private client adverse to a person where confidential government information about that person could be used to the person's material disadvantage; it applies even to information learned by happenstance, but not to information merely imputed to the lawyer.

Background and rules framework

The opinion applies New York Rule 1.11(c), (d), and (f), which restrict a lawyer currently serving as a public officer or employee, and corresponds to ABA Model Rule 1.11. The committee emphasizes that controlling municipal-conduct law (General Municipal Law, Public Officers Law, Municipal Home Rule Law, Town Law, and local codes) takes priority over the Rules and must be consulted first.

Citations and references

Rules of Professional Conduct:

New York Rules of Professional Conduct 1.11(c); 1.11(d); 1.11(f)
ABA Model Rule 1.11 (analogue)

Statutes:

New York General Municipal Law; Public Officers Law; Municipal Home Rule Law; Town Law (referenced as overriding authorities)

Other opinions cited:

N.Y. State 1056 (2015): county clerk engaging in the private practice of law under Rule 1.11(d) and (f)
N.Y. State 510 (1979): deputy town supervisor may not represent private clients in matters involving the town
N.Y. State 431 (1976): purposes of rules disqualifying part-time public officials from certain private clients
N.Y. State 968 (2013): rule-of-necessity exception under Rule 1.11(d)

Source

Landing page: https://nysba.org/ethics-opinion-1169/