Can a part-time State Estate Tax Attorney also represent private clients in Surrogate's Court?

Plain-English summary

The committee addressed whether a part-time State Estate Tax Attorney may represent individual clients in Surrogate's Court. It began from the principle that lawyers in public employment should avoid not only actual conflicts but the possibility of conflicting interests, should not use public employment to promote private practice, and should avoid any appearance of impropriety (Canon 5, EC 5-2, 5-14, DR 5-105, EC 8-8, DR 8-101(A)(2), Canon 9, EC 9-2, 9-3, 9-6, DR 9-101(B) and (C)). Part-time public lawyers, it added, occupy a position of special sensitivity and must avoid private work that could undermine confidence in the legal system or suggest unfair influence in securing or representing private clients against their employing agency.

The committee declined to disqualify these attorneys in all cases, instead setting limits. First, a State Estate Tax Attorney may not represent any client in any matter involving the State Department of Taxation and Finance, in any court including Surrogate's Court or in administrative proceedings, because his duty to protect the State's financial interests conflicts with the duty to get the best result for a private client (EC 8-8; EC 5-2; EC 5-14; DR 5-105(A); EC 9-6). The committee stressed that a public agency, unlike a private party, cannot consent to dual representation where an apparent conflict exists, even if the Department's own regulations purport to permit it.

Second, the attorney must not let his official position act as a feeder for legal work: he must decline any client whose contact originated from his official duties, such as a person from whom he obtained tax waivers or whose safety-deposit box he attended for the State (DR 9-101(B); cf. DR 8-101(A)(2)). Third, subject to those limits, he may handle non-tax matters in Surrogate's Court, such as probate and estate-settlement proceedings, so long as separate counsel handles all state-tax aspects and the client's interests and competent representation are protected without increasing the client's costs (Canon 6; DR 2-107(A)(3)). Fourth, he should resolve any doubt against accepting a retainer. Finally, if one firm member is disqualified, all partners and associates are likewise disqualified (DR 5-105(D)).

Currency note

This opinion was issued in 1975, before New York replaced the Code of Professional Responsibility with the Rules of Professional Conduct in 2009; the conflicts it analyzes are now governed by Rule 1.7, the rules for government lawyers in Rule 1.11, and solicitation in Rule 7.3, with imputation under Rule 1.10. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a State Estate Tax Attorney take private estate cases in Surrogate's Court?

A: Under this opinion, yes, but only non-tax matters such as probate and estate settlement, with separate counsel retained for all state-tax aspects.

Q: What is absolutely off-limits?

A: Per the opinion, any matter involving the State Department of Taxation and Finance, and any client whose contact with the lawyer arose from his official duties (for example, someone he dealt with in issuing tax waivers).

Q: Can the tax department consent to let him represent a private client against it?

A: No. The committee held that a public agency, unlike a private individual, cannot consent to dual representation where an apparent conflict exists, even if the agency's regulations allow it.

Q: Does disqualification reach the lawyer's firm?

A: Yes. The committee applied DR 5-105(D): if one member of a firm is disqualified, all partners and associates are disqualified.

Background and rules framework

The opinion applied the then-current New York Code's conflict and public-office provisions, principally EC 8-8 (public officer's conflicting interests), DR 5-105 and 5-105(D) (declining and imputing conflicting employment), DR 9-101(B) (use of public position), DR 8-101(A)(2), and Canon 9. The current analogues are Rule 1.7 (concurrent conflicts), Rule 1.11 (current and former government officers and employees), Rule 7.3 (solicitation), and the imputation rule, Rule 1.10.

Citations and references

Rules of Professional Conduct:

• MR 1.7 (conflict of interest; current clients)
• MR 1.11 (special conflicts for government lawyers)
• MR 7.3 (solicitation of clients)
• NY Canon 5, 6, 9; EC 5-2, 5-14, 8-8, 9-2, 9-3, 9-6; DR 2-107(A)(3); DR 5-105, 5-105(A), 5-105(D); DR 8-101(A)(2); DR 9-101(B), (C)

Other opinions cited:

• N.Y. State 257 (1972): an assistant county attorney may not represent private clients against the county
• N.Y. State 143 (1970); N.Y. State 110 (1969): public-agency conflict and the no-consent rule

See also

• NY State Bar Op. 397: Investigation-agency member defending criminals
• NY State Bar Op. 430: Part-time prosecutor's civil suit against the county
• NY State Bar Op. 418: County legislator opposing the county attorney

Source

• Landing page: https://nysba.org/opinion-392/