Can an assistant county attorney moonlight as a paid consultant for the software vendor whose contract with the county the lawyer helped negotiate and implement?

Plain-English summary

The inquirer is an assistant county attorney who played a significant role in the county's acquisition and implementation of contract-management software and still provides technical support to county staff. The vendor that supplied and customized the software, and who worked closely with the inquirer on the county contract, has offered to hire the inquirer as a consultant to provide implementation and support services to other counties buying the same software. The inquirer asked whether this would create a waivable conflict, whether it would disqualify the county attorney's office in a county-vendor dispute, and whether being paid by the other counties rather than the vendor would change the analysis.

The opinion starts with Rule 1.11(d)(2), which bars a lawyer currently serving as a public officer from negotiating private employment with a person involved as a party (or party's lawyer) in a matter in which the lawyer participates personally and substantially, except as law may expressly provide. The county-vendor software contract is a "matter" under Rule 1.0(l), so the inquirer is barred from negotiating employment with the vendor; that prohibition is not waivable and lasts until the matter concludes (citing N.Y. State 1187 and 1205). Whether a local law or policy falls within the "law" exception is a legal question outside the committee's jurisdiction, and local ethics codes on outside employment may independently restrict the work.

Even if Rule 1.11 were satisfied, Rule 1.7(a)(2) is implicated: a paid consultancy could create a significant risk that the lawyer's professional judgment for the county would be adversely affected by the lawyer's financial interest (for example, reluctance to advise replacing or terminating the vendor for fear of losing the consulting income). Any such conflict would have to be waived under Rule 1.7(b), and the committee doubted waivability under 1.7(b)(1) given the divided loyalties. The opinion also flags Rule 1.11(f)(3), an absolute, non-waivable bar on a public-office lawyer accepting anything of value offered to influence official action, with relevant factors including the size of the payment and the vendor's stake in the lawyer's discretionary county decisions. If the consulting crossed into legal services, Rules 5.7 and 1.7(a)(1) would also apply. Switching the payer to the other counties would not cure the Rule 1.11(d)(2) or 1.7(a)(2) problems (the other counties are also parties to the matter and the financial interest remains), though it might avoid a Rule 1.11(f)(3) violation. A county-vendor dispute would magnify the conflict, and a personal conflict imputed to other assistant county attorneys under Rule 1.10(a) might be waivable as to them even if not as to the inquirer.

In practice

Under this opinion, a New York assistant county attorney who participated personally and substantially in the county's software contract may not negotiate consulting employment with that vendor unless local law expressly permits it, because Rule 1.11(d)(2) imposes a non-waivable bar that runs until the matter ends. Per the opinion, even with a law exception, the arrangement could create a Rule 1.7(a)(2) personal-interest conflict whose waivability under Rule 1.7(b)(1) is doubtful, and Rule 1.11(f)(3) absolutely bars accepting payment offered to influence the lawyer's official action. Per the opinion, having the vendor's other county customers pay instead would not cure the Rule 1.11(d)(2) or 1.7(a)(2) problems, and a county-vendor dispute would heighten the conflict.

Common questions

Q: Can the county lawyer negotiate a consulting job with the software vendor?

A: Not unless law expressly allows it. Per the opinion, Rule 1.11(d)(2) bars negotiating private employment with a party to a matter the lawyer handles personally and substantially, and that bar is not waivable.

Q: If local law permitted it, would the consultancy be ethical?

A: Not necessarily. Per the opinion, it could still create a Rule 1.7(a)(2) personal-interest conflict that may not be waivable, and Rule 1.11(f)(3) absolutely bars payments offered to influence official action.

Q: Does being paid by the other counties instead of the vendor fix the problem?

A: Mostly no. Per the opinion, the other counties are also parties to the matter under Rule 1.11(d)(2), and the financial interest under Rule 1.7(a)(2) remains, though changing the payer might avoid a Rule 1.11(f)(3) violation.

Q: What if a dispute arises between the county and the vendor?

A: Per the opinion, the lawyer's personal conduct of such litigation would likely create a conflict under Rule 1.7(a)(2), perhaps unwaivable; an imputed conflict to other assistant county attorneys under Rule 1.10(a) could still be waivable as to them.

Background and rules framework

The opinion interprets Rule 1.11(d)(2) (current government lawyer negotiating private employment) and Rule 1.11(f)(3) (accepting benefits to influence official action), with the definitions of "firm" and "matter" in Rules 1.0(h) and 1.0(l); Rule 1.7(a)(1)-(2) and (b) (differing-interests and personal-interest conflicts and consent); Rule 1.10(a) and (d) (imputation and waiver); and Rule 5.7 (nonlegal services). These correspond to ABA Model Rules 1.11, 1.7, and 5.7.

Citations and references

Rules of Professional Conduct:

• New York Rules of Professional Conduct 1.11(d)(2), 1.11(f)(3); 1.0(h), 1.0(l); 1.7(a)(1)-(2), 1.7(b); 1.10(a), (d); 5.7(a), (c)
• ABA Model Rules 1.11, 1.7, 5.7 (analogues)

Other opinions cited:

• N.Y. State 1187 (2020); 1205 (2020): scope and non-waivability of the Rule 1.11(d)(2) bar
• N.Y. State 1169 (2019): local ethics codes on outside employment
• N.Y. State 1200 (2020); 1178 (2019): applying Rule 5.7 to nonlegal services
• N.Y. State 968 (2013): government law office as a "firm" and imputation

See also

• NY State Bar Op. 1238: County Attorney's Outside Family Court Practice
• NY State Bar Op. 1219: Part-Time County Attorney and Parole Violation Hearings
• NY State Bar Op. 1242: Town Attorney's Private Client Before a Neighboring Town
• NY State Bar Op. 1222: Lawyer-Nonlawyer Co-Ownership of a Mediation Business

Source

• Landing page: https://nysba.org/ethics-opinion-1216/