If a lawyer takes case-by-case retainers from a county social services department, is the lawyer disqualified from all private matters against the county, or only matters involving that department?

Plain-English summary

The committee considered a County Department of Social Services that wanted to retain local lawyers case by case for matters its full-time counsel could not handle. The question was whether accepting such an individual retainer would disqualify the lawyer from representing private clients in claims against the county or in criminal matters prosecuted by the County Attorney.

The committee drew on its prior part-time-public-service opinions (N.Y. State 435 (1976), 431 (1976), 392 (1975), and opinions cited there). Disqualification is mandated, it held, under provisions such as EC 8-8, DR 5-105(A) and (B), DR 8-101(A)(2) and (3), and DR 9-101(C) where the lawyer's personal or professional interests are or foreseeably may conflict with official duties, or where there is a possibility or suspicion that the private client may seek some improper advantage. Where there is no actual or potential conflict, no appearance of improper influence, and no basis for public suspicion, there should be no disqualification.

The committee reached two holdings. First, a lawyer who accepts individual retainers from one county department may not, while those retainers are pending, represent private clients in matters in which the same department is an opposing party or has an interest; no lawyer may take a retainer that would make it his duty to assert a claim against the interests of a client he concurrently represents (N.Y. State 392 (1975); cf. N.Y. State 322 (1973)). Second, where a government is organized into separate departments, the department, not the parent governmental unit, is treated as the client for the rule against concurrent adverse representation. Because this department had its own full-time counsel and was not represented by the County Attorney, there was no basis for automatically disqualifying the specially retained lawyer from other county matters, civil or criminal; disqualification might still arise if the lawyer's relationship with the parent unit or its lawyers were close enough to create public suspicion of improper influence.

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 the conflicts of current and former government lawyers by Rule 1.11). 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: Does taking work from a county agency disqualify a lawyer from all matters against the county?

A: Under this opinion, no, not where the agency has its own counsel. The committee held the department, not the parent county, is the client, so disqualification reaches only matters involving that department.

Q: What matters is the lawyer disqualified from?

A: Per the opinion, while the retainers are pending the lawyer may not represent private clients in matters where the same department is an opposing party or has an interest, because that would mean asserting a claim against a concurrent client.

Q: Could the lawyer still be disqualified more broadly?

A: The committee noted disqualification might still be required if the lawyer's relationship with the parent county unit or its legal representatives were close enough to raise public suspicion of improper influence.

Background and rules framework

The opinion applies the then-current New York Code provisions on conflicts and public office, EC 8-8, DR 5-105(A) and (B), DR 8-101(A)(2) and (3), and DR 9-101(C). The current Model Rule analogues are Rule 1.7 (concurrent conflicts of interest) and Rule 1.11 (special conflicts for current and former government officers and employees). The pivotal move is defining the client narrowly as the specific department, which the opinion permits only because that department had separate counsel and was not represented by the County Attorney.

Citations and references

Rules of Professional Conduct:

• MR 1.7 (concurrent conflict of interest)
• MR 1.11 (special conflicts for government lawyers)
• NY EC 8-8; DR 5-105(A), (B); DR 8-101(A)(2), (3); DR 9-101(C)

Other opinions cited:

• N.Y. State 392 (1975): no retainer that requires asserting a claim against a concurrent client
• N.Y. State 435 (1976); 431 (1976); 322 (1973): part-time public service and conflicts

See also

• NY State Bar Op. 453: Former deputy town attorney and tax certiorari work
• NY State Bar Op. 450: Part-time town attorney and private real estate work
• NY State Bar Op. 451: Part-time DA sharing his salary with partners
• NY State Bar Op. 1074: Part-time social services lawyer taking assigned cases

Source

• Landing page: https://nysba.org/opinion-447/