What conflicts of interest does a New York per diem (appearance counsel) attorney face when switching between representing plaintiff lenders and defendant debtors in collection matters?
NYSBA Ethics Opinion 1293: Conflict Analysis for Per Diem Attorney
Short answer: The opinion concludes that a per diem (appearance counsel) lawyer in New York may not represent a client against a current client in any matter, or against a former client in a substantially related matter, absent informed consent confirmed in writing. The opinion also identifies personal-interest conflicts under Rule 1.7(a)(2) where the opposing lawyer in a given case is one for whom the per diem frequently appears or hopes to appear.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York 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 is a per diem lawyer who appears in court for one-time hearings (status conferences, settlement conferences, default judgments, motions for summary judgment) on behalf of attorneys of record. To date the inquirer has appeared only for plaintiff Lenders (banks and credit card companies) in collection actions against defendant Debtors. The inquirer's per diem company has now asked the inquirer to appear for a defendant Debtor, which raises three questions about conflicts.
On Question A (current-client conflicts), the opinion concludes that once the inquirer has agreed to appear for a Lender at a future court appearance, the Lender is a current client. Per the opinion, the November 2025 amendments to Rule 1.7(a)(1) prohibit a representation directly adverse to a current client "even when the matters are wholly unrelated," absent informed consent confirmed in writing under Rule 1.7(b)(4). The opinion observes that obtaining a defendant Debtor's informed consent to oppose a Lender is more complex than the reverse: Debtors are usually individuals without in-house counsel and limited experience with retaining lawyers. The committee identifies factors relevant to the disclosure (number of past appearances for the Lender, recency, expectation of future work) without mandating specific disclosures.
On Question B (former-client conflicts), the opinion concludes that under the inquirer's per diem agreement, a Lender becomes a former client at the end of each court appearance because the relationship terminates by its terms. Per Rule 1.9(a), the inquirer may oppose a former-client Lender on behalf of a Debtor only if the matters are not substantially related, or with informed consent confirmed in writing if they are. The opinion applies Comment [3]'s test: 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 position in the new matter. The opinion observes that the inquirer's confidentiality obligations under Rule 1.9(c) remain regardless of substantial-relationship status.
On Question C (personal-interest conflicts), the opinion concludes that even when no current- or former-client conflict exists, opposing a lawyer for whom the inquirer frequently appears (or hopes to appear) may create a Rule 1.7(a)(2) personal-interest conflict. The opinion describes this as a "significant risk" inquiry: the closer the inquirer's business relationship with the opposing lawyer, and the more important that lawyer is to the inquirer financially, the more likely a conflict exists. Without informed consent confirmed in writing from the Debtor client, the representation cannot proceed.
The opinion observes that a lawyer is barred from representing both sides in the same litigation under Rule 1.7(b)(3), even with consent; the inquirer therefore cannot serve as per diem for both Lender and Debtor in a single matter.
In practice
Under this opinion, a New York per diem lawyer must check each new engagement against current and former engagements as required by Rule 1.10(e); the opinion endorses the joint check the inquirer must perform with the hiring firm under N.Y. State 1113 (2017). Per the opinion, the per diem must, before accepting an assignment opposing a current Lender client, obtain informed consent confirmed in writing from both the Lender and the Debtor; before accepting an assignment opposing a former Lender client in a substantially related matter, obtain the former client's informed consent confirmed in writing; and before accepting an assignment opposing a lawyer for whom the per diem frequently appears, evaluate whether Rule 1.7(a)(2) requires the Debtor's informed consent confirmed in writing.
The opinion observes that a financially dependent per diem may be unable to provide "competent and diligent" representation to a Debtor whose interests oppose a key Lender client; in such cases, the Rule 1.7(b)(1) "reasonable belief" condition for consent fails and the conflict becomes non-consentable.
Common questions
Q: When does a per diem lawyer become a Lender's current client?
A: The opinion concludes the Lender becomes a current client "the moment the inquirer agreed to represent the Lender at a future court appearance," based on the Preamble's note that most duties attach when the client requests services and the lawyer agrees. The opinion distinguishes Rule 1.18 prospective-client status, which applies only before such agreement.
Q: Can a per diem lawyer who previously appeared for a Lender later represent a Debtor in a matter against that Lender?
A: Per the opinion, yes if the new matter is not "substantially related" to the prior representation under Rule 1.9(a); otherwise, only with the former Lender's informed consent confirmed in writing. The opinion observes that Rule 1.9(c)'s confidentiality duty applies regardless.
Q: When is a personal-interest conflict triggered just because the opposing counsel is one the per diem appears for?
A: The opinion applies Rule 1.7(a)(2)'s "significant risk" inquiry. The opinion identifies the closeness of the per diem's relationship with the opposing lawyer and the financial importance of that lawyer to the per diem (as a source of income or referrals) as the principal factors. If those facts create a significant risk of adverse effect on independent judgment, the conflict requires the Debtor's informed consent confirmed in writing.
Q: Can a per diem lawyer be on both sides of the same case in different appearances?
A: The opinion concludes no, even with consent. The opinion cites Rule 1.7(b)(3) for the rule that a lawyer cannot represent both sides in the same litigation; this is a non-consentable conflict.
Q: Does conflict imputation apply to the per diem lawyer's relationships with hiring firms?
A: The opinion observes that conflict checks under Rule 1.10(e) must be performed by both the hiring firm and the per diem at or near the time of each new engagement. The opinion endorses the N.Y. State 1113 (2017) framework: both lawyers maintain records and check.
Q: When does Rule 1.7(b)(1) make a conflict non-consentable for the per diem?
A: Per the opinion, when the per diem is financially dependent on a particular Lender (or fears losing referrals from that Lender), the per diem may be unable to provide "competent and diligent" representation to a Debtor opposing that Lender. The Rule 1.7(b)(1) "reasonable belief" requirement then fails and the conflict cannot be cured by consent.
Background and rules framework
The opinion interprets the New York Rules of Professional Conduct as amended by the Appellate Division effective November 10, 2025. The November 2025 amendments to Rule 1.7(a)(1) replaced the prior "differing interests" formulation with a "directly adverse" test, aligning more closely with Model Rule 1.7. The opinion also interprets Rule 1.2(c) (limited-scope representation), Rule 1.7(a)(2) and (b) (concurrent conflicts and consent requirements), Rule 1.9 (duties to former clients), Rule 1.10(e) (conflict checks among associated lawyers), Rule 1.16(b)(3) (discharge as a basis for withdrawal), and Rule 1.18 (prospective clients). The opinion builds on N.Y. State 1113 (2017), which addressed the duties of per diem lawyers and hiring firms.
Citations and references
Rules of Professional Conduct:
- N.Y. RPC 1.0(f) (definitions)
- N.Y. RPC 1.2(c) (limited-scope representation)
- N.Y. RPC 1.7(a)(1) (current-client direct adversity, as amended Nov. 10, 2025)
- N.Y. RPC 1.7(a)(2) (personal-interest conflicts, as amended Nov. 10, 2025)
- N.Y. RPC 1.7(b)(1), (3), (4) (consent conditions; non-consentable conflicts)
- N.Y. RPC 1.9(a), (c) (former-client conflicts; confidentiality)
- N.Y. RPC 1.10(e) (conflict checks)
- N.Y. RPC 1.16(b)(3) (withdrawal on discharge)
- N.Y. RPC 1.18(a) (prospective clients)
Other opinions cited:
- N.Y. State Bar Ass'n Op. 1113 (2017): duties of per diem lawyers and hiring firms.
- N.Y. State Bar Ass'n Op. 1008 (2014): termination of attorney-client relationship by accomplishment of its purpose.
- N.Y. State Bar Ass'n Op. 960 (2013): general knowledge of a former client's policies and "playbook" conflicts.
- N.Y. State Bar Ass'n Op. 723 (1999): general knowledge of former-client information.
Court rules:
- 22 NYCRR Part 202 (Uniform Rules for the Supreme Court & County Court), Rule 202.1(f), Rule 202.12(b) (familiarity and authority of counsel at appearances).