NYSBA 2024-09-12

Can a state agency lawyer work on an enforcement action against a company the lawyer represented in private practice before joining the agency?

Short answer: Only sometimes. The opinion concludes the agency lawyer has a conflict only if he would normally have acquired confidential information in the prior representation that is material to the enforcement action; if a conflict exists, it is imputed to the whole agency counsel's office and screening will not cure it absent the former client's consent.

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 Not binding precedent.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 1274: A Government Lawyer Against a Former Private Client

Short answer: The opinion concludes that a lawyer in a state agency counsel's office would have a conflict in working on an enforcement action against a client he formerly represented in private practice only if he would normally be expected to have acquired confidential information in the prior representation that is material to the enforcement action; if a conflict exists, it is imputed to the agency counsel's office, and screening will not avoid imputation absent the former client's consent.

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

The inquirer works in the counsel's office of a state agency that licenses health care providers. Before joining the agency in 2022, he was in private practice at a firm that represented a client now licensed by the agency. The firm's work was mainly handled by another lawyer, but the inquirer worked on two matters for the client (a discrimination complaint and an insurance coverage dispute), both involving facilities not licensed by the agency. The agency is now considering an enforcement action against the former client over deficiencies in its licensed facilities. The inquirer asks whether he may work on the matter or must be screened.

The opinion applies Rule 1.9(b), under which a lawyer may not represent a person in the same or a substantially related matter that his former firm handled adverse to the former client, where the lawyer acquired material confidential information protected by Rule 1.6 or 1.9(c). The opinion explains, using Comment [3] to Rule 1.9, that matters are substantially related if a reasonable lawyer would conclude there is a substantial risk that confidential information normally obtained in the prior representation would materially advance the position in the new matter, and that a conflict can arise from information the lawyer would normally have obtained, whether or not he actually did. The opinion directs the inquirer to assess whether confidential information normally acquired in handling the discrimination and coverage matters (at non-licensed facilities) would materially advance the agency's enforcement action, also considering information about other firm matters and the passage of time. If so, he is barred absent the former client's informed consent.

On imputation, the opinion applies Rule 1.10(a), treating the government counsel's office as a "firm" under Rule 1.0(h), so a Rule 1.9 conflict is imputed to the whole office; under Rule 1.10(d) the former client may waive it, but screening alone will not cure it except as a condition of consent (citing N.Y. State 1186 (2020)). The opinion explains, citing Comment [9B] to Rule 1.11, that New York imputes such conflicts to government law offices, unlike the ABA Model Rules, because New York's courts declined to adopt the State Bar's proposed non-imputation provisions. It notes the practical difficulty this creates and that whether a "rule of necessity" outside the Rules could override is a question of law it does not decide.

In practice

Under this opinion, an agency lawyer is disqualified from an enforcement action against a former private client only where he would normally have acquired confidential information in the prior representation that is material to the new matter, which is a substantial-relationship analysis under Rule 1.9(b). Per the opinion, where a conflict exists it is imputed to the entire agency counsel's office under Rule 1.10(a), and screening will not avoid imputation unless the former client consents.

Common questions

Q: Is an agency lawyer automatically barred from a case against a former private client?

A: Per the opinion, no. He is disqualified only if he would normally be expected to have acquired confidential information in the prior representation that is material to the enforcement action, making the matters substantially related under Rule 1.9(b).

Q: If the lawyer is conflicted, can the rest of the agency office still handle the case?

A: Per the opinion, not by screening alone. The conflict is imputed to the whole government counsel's office under Rule 1.10(a), and screening cures it only as a condition of the former client's consent.

Q: Does New York treat government offices differently from the ABA Model Rules here?

A: Per the opinion, yes. New York imputes Rule 1.9 conflicts to government law offices (Comment [9B] to Rule 1.11), whereas the ABA Model Rules do not impute a current government lawyer's conflicts to the office.

Background and rules framework

The opinion interprets New York Rule 1.9(b) and (c) (duties to former clients), Rule 1.6(a) (confidential information), Rule 1.10(a) and (e) (imputation), and Rule 1.11(d) (current government lawyers). These correspond to ABA Model Rules 1.9, 1.6, 1.10, and 1.11, though the opinion notes New York's imputation in government offices differs from the Model Rules.

Citations and references

Rules of Professional Conduct:

New York Rules of Professional Conduct 1.6(a), 1.9(b)-(c), 1.10(a) & (e), 1.11(d)
ABA Model Rules 1.9, 1.6, 1.10, 1.11 (analogues; the opinion notes New York's government-office imputation differs)

Other opinions cited:

N.Y. State 1186 (2020): screens cannot prevent Rule 1.10(a) imputation unless the Rules provide otherwise
N.Y. State 1029 (2014): differences between Rule 1.9 and Rule 1.11(d)(1) conflicts

Source

Landing page: https://nysba.org/ethics-opinion-1274/