Can a town attorney keep representing the town while his law partner brings a personal lawsuit against that same town?

Plain-English summary

The committee considered a part-time town attorney (a statutory office under Town Law section 24, so a continuing position) whose partner wished to bring a personal certiorari proceeding against the town, with both the town and the partner represented by outside counsel.

The committee drew on its line of part-time-public-official cases: a part-time town attorney may not represent private clients before town administrative agencies because of unwaivable conflicts and possible access to confidential information (N.Y. State 143 (1970)); a part-time prosecutor may not represent a private client in a judicial proceeding against the municipality that employs him (N.Y. State 218 (1971)); and a school board member may not represent a property owner seeking reassessment (N.Y. State 364 (1974)). The principle running through them is that a lawyer may not, while representing a client, sue that client on another's behalf, and the committee held the principle applies equally to a lawyer suing his own client in his own right (EC 5-3, DR 5-101(A)).

The committee concluded that even if other counsel handled the certiorari proceeding, both the inherent conflict and the appearance of impropriety would remain, and that the apparent impropriety was substantial enough that the municipality could not consent to make it permissible (N.Y. State 143). Because the town attorney himself could not simultaneously represent the town and sue it, his partners were equally precluded under DR 5-105(D); until the inquirer and his partners ceased representing the town, he had to forego causing suit against it.

Currency note

This opinion was issued in 1976, before New York replaced the Code of Professional Responsibility with the Rules of Professional Conduct in 2009 (concurrent conflicts are now governed by Rule 1.7 and imputation by 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 Treat this page as historical context, not current guidance.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 town attorney's partner sue the town while the firm still represents it?

A: Under this opinion, no. The committee held that because the town attorney could not both represent and sue the town, the bar extended to his partners under DR 5-105(D) for as long as the firm represented the municipality.

Q: Does it help if outside counsel handles the lawsuit against the town?

A: No. The committee held the inherent conflict and appearance of impropriety remained even with other counsel handling the certiorari proceeding.

Q: Could the town simply consent to the arrangement?

A: Per the opinion, no. The committee found the apparent impropriety substantial enough that the municipality could not consent to render the representation ethically permissible.

Background and rules framework

The opinion applies EC 5-3 and DR 5-101(A) (a lawyer's own interests conflicting with a client's) and DR 5-105(D) (imputation to partners) of the then-current New York Code, within the committee's broader framework for part-time public officials. The current Model Rule analogues are Rule 1.7 (concurrent conflicts) and Rule 1.10 (imputation of conflicts within a firm).

Citations and references

Rules of Professional Conduct:

• MR 1.7 (concurrent conflict of interest)
• MR 1.10 (imputation of conflicts of interest)
• NY EC 5-3; DR 5-101(A); DR 5-105(D)

Statutes:

• N.Y. Town Law section 24 (town attorney's statutory term of office)

Other opinions cited:

• N.Y. State 143 (1970): part-time town attorney conflicts the municipality cannot waive
• N.Y. State 218 (1971); N.Y. State 364 (1974): part-time officials suing or appearing against their public employers

See also

• NY State Bar Op. 450: Part-time town attorney and private real estate work
• NY State Bar Op. 468: Town and village attorney serving a dual role
• NY State Bar Op. 1065: A part-time prosecutor's firm suing a separate village
• NY State Bar Op. 437: Sharing office space with an assistant district attorney

Source

• Landing page: https://nysba.org/opinion-444/