Does a lawyer who used to work at a Legal Aid office have a conflict against a party another Legal Aid lawyer represented while she was there?

Plain-English summary

The inquirer spent years at her county's Legal Aid Society representing clients in Family Court. She has since left, practiced in another area, and now appears in the same Family Court in private practice. She asks whether she has a conflict in representing clients adverse to a party who was represented by a different Legal Aid lawyer while she was employed there.

The opinion applies Rule 1.9(b), which bars a lawyer from representing a person in the same or a substantially related matter in which a former firm previously represented a materially adverse client about whom the lawyer had acquired protected confidential information that is material to the matter. Rule 1.0(h) defines "firm" to include a Legal Aid Society office, so the office counts as the inquirer's former firm.

The opinion's key point is that Rule 1.9(b) imposes a two-part test for a lawyer who did not personally handle the prior matter: the lawyer is conflicted only if she acquired confidential information material to the new matter and the matters are substantially related. The committee could not determine on the facts whether the two matters were substantially related, but it explains that even if they were, there would be no conflict if the inquirer did not acquire material confidential information about a matter that other Legal Aid lawyers, not she, worked on.

In practice

Under this opinion, conduct that involves a former Legal Aid lawyer appearing adverse to a former client of the office on a matter she did not work on is permitted unless both conditions of Rule 1.9(b) are met: she acquired material confidential information about that client, and the matters are substantially related. Per the opinion, the committee could not determine whether those conditions were met on the facts presented.

Common questions

Q: Is a former public-interest-office lawyer automatically barred from cases against the office's former clients?

A: Per the opinion, no. Under Rule 1.9(b), the bar applies only if the lawyer acquired material confidential information about that client and the matters are substantially related.

Q: Does a Legal Aid office count as a "firm" for conflicts?

A: Per the opinion, yes. Rule 1.0(h) defines "firm" to include lawyers employed in a qualified legal assistance organization, such as a Legal Aid Society office.

Q: What makes matters "substantially related"?

A: Per the opinion, citing Comment [3] to Rule 1.9, matters are substantially related if they involve the same transaction or legal dispute, or if a reasonable lawyer would conclude there is a substantial risk that confidential information from the prior representation would materially advance the client in the new matter.

Background and rules framework

The opinion interprets New York Rule 1.9(b) and (c) (a lawyer's duties to clients of a former firm), Rule 1.0(h) (the definition of "firm"), and Rule 1.6(a) (confidential information). These correspond to ABA Model Rules 1.9 and 1.10.

Citations and references

Rules of Professional Conduct:

• New York Rules of Professional Conduct 1.0(h), 1.6(a), 1.9(b), 1.9(c)
• ABA Model Rule 1.9 (analogue)

See also

• NYSBA Ethics Op. 1261: A Current Client Testifying Against a Former Client
• NYSBA Ethics Op. 1274: Government Lawyer vs. a Former Client
• NYSBA Ethics Op. 1257: Former DA at the Defender Office

Source

• Landing page: https://nysba.org/ethics-opinion-1265/