Can a former deputy town attorney later represent private clients in tax certiorari cases against the same town?

Plain-English summary

The committee was asked whether a former deputy town attorney, whose responsibilities had included defending tax certiorari proceedings against the town, may represent private clients in such proceedings after leaving town employment. It identified two governing limits. First, DR 9-101(B) bars a lawyer leaving government service from accepting private employment in any matter in which he had substantial responsibility as a public employee; a former deputy town attorney could not handle any matter in which he actively participated or had supervisory responsibility. Second, DR 4-101(B), as elaborated by EC 4-5 and EC 4-6, bars revealing or using a former client's confidences or secrets to the client's disadvantage. Because the former client here was a municipality, the committee noted the usual consent exception was unavailable, since a public body cannot consent to such use (N.Y. State 322 (1973)).

The committee explained that the purpose of these provisions is to promote public confidence in the integrity of the legal system (EC 9-3), but that neither the Code nor that goal requires barring former government lawyers from the very types of matters in which they gained particular expertise in public service. Balancing those considerations, it held that a former deputy town attorney may represent private clients in tax certiorari proceedings against the town where, while in office, he had no substantial responsibility for proceedings affecting the subject property and obtained no confidential information relating to it (citing N.Y. State 429 (1976), 313 (1973), 303 (1973), and ABA opinions).

The committee added a scope rule. Although each tax year may technically give rise to a new proceeding, disqualification as to a given property must extend to all certiorari proceedings involving that property because of the similarity of the factual issues (N.Y. State 132 (1970), 176 (1971), 435 (1976)).

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 (the conflicts of former government lawyers are now governed by Rule 1.11 and duties to former clients by Rule 1.9). 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 Treat this page as historical context, not current guidance.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 former town attorney sue the town in tax cases for private clients?

A: Under this opinion, only as to property for which he had no substantial responsibility and acquired no confidential information while in office; otherwise DR 9-101(B) and DR 4-101(B) disqualify him.

Q: Does the disqualification end when a new tax year begins?

A: No. The committee held that disqualification as to a property extends to all tax certiorari proceedings involving that property, because the factual issues are so similar, even though each year is technically a new proceeding.

Q: Why can't the town just consent?

A: The committee held the consent exception is unavailable because the former client is a municipality, and a public body cannot consent to the use of its confidences against it.

Background and rules framework

The opinion applies DR 9-101(B) (no private employment on a matter in which the lawyer had substantial responsibility as a public employee), DR 4-101(B) with EC 4-5 and EC 4-6 (protecting former clients' confidences), and EC 9-3 (public confidence in the system). The current Model Rule analogues are Rule 1.11 (special conflicts for former government officers and employees) and Rule 1.9 (duties to former clients).

Citations and references

Rules of Professional Conduct:

• MR 1.11 (special conflicts for former and current government officers and employees)
• MR 1.9 (duties to former clients)
• NY EC 4-5, EC 4-6, EC 9-3; DR 4-101(B), DR 9-101(B)

Other opinions cited:

• N.Y. State 322 (1973): a municipality cannot consent to use of its confidences
• N.Y. State 429 (1976); 313 (1973); 303 (1973): scope of former-government-lawyer disqualification
• N.Y. State 132 (1970); 176 (1971); 435 (1976): disqualification across related proceedings

See also

• NY State Bar Op. 502: Former assistant DA representing defendants
• NY State Bar Op. 506: Assistant county attorney private conflict
• NY State Bar Op. 1029: Conflicts for government lawyers with prior private clients

Source

• Landing page: https://nysba.org/opinion-453/