Can a lawyer become part-time town attorney while the firm represents a client suing the town?

Plain-English summary

The committee was asked whether a lawyer could accept an appointment as part-time town attorney while the firm of which he is a member represented a client in litigation involving the town. It answered yes, but only on conditions.

The committee distinguished the position of a lawyer being offered a public appointment from that of an incumbent municipal attorney offered private work. For incumbents, prior opinions (N.Y. State 143, 257, 444, 450) had stressed that a public attorney must watch for later conflicts with the municipality, cannot rely on the consent exception in DR 5-105(C), and must avoid the appearance of impropriety. By contrast, the propriety of accepting public office despite an existing client's conflicting interests had been recognized (ABA 136 (1935); Drinker, Legal Ethics), an implicit exception to DR 5-105(A) grounded in the public's interest in being served by qualified public officers (EC 8-8).

The committee cautioned that once the lawyer accepts the part-time town attorney position, he and all members and associates of his firm must avoid conflicting interests and any appearance of impropriety (Canons 5 and 9; EC 8-8, 9-2, 9-6; DR 5-105(A), (B), (D)). Although the interests of the town and the client might coincide at a given point, the possibility of later divergence could not be disregarded, and representation of multiple clients in litigation is seldom justified (EC 5-14, 5-15); as between a present client and a prospective one, the lawyer must not let the latter's interests harm the former's (DR 5-105(A)). The committee concluded that if either the town engages independent counsel for the matter in litigation, or the client voluntarily assents to the firm's withdrawal and retains new counsel, there is no ethical obstacle to accepting the town attorney position, because in either case the private client's interests are protected and the appearance of impropriety is avoided. The question was answered in the affirmative, subject to those conditions.

Currency note

This opinion was issued in 1978, 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, conflicts of government officers and employees by Rule 1.11, 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 lawyer become part-time town attorney while the firm is suing the town?

A: Under this opinion, only on conditions. The committee allowed it if the town retains independent counsel for the matter in litigation or the client consents to the firm's withdrawal and retains new counsel.

Q: Why was an exception recognized at all?

A: The committee relied on the public's interest in being served by qualified public officers (EC 8-8), recognizing an implicit exception to DR 5-105(A) for accepting public office despite an existing client's conflicting interests.

Q: Does the conflict extend to the lawyer's firm?

A: Yes. The committee held that all members and associates of the firm share the same ethical constraints under DR 5-105(D).

Background and rules framework

The opinion applies DR 5-105(A), (B), (C), (D) (declining and imputed conflicts), EC 5-14 and 5-15 (multiple representation in litigation), EC 8-8 (lawyers in public office), and Canon 9 with EC 9-2 and 9-6 (appearance of impropriety). The current Model Rule analogues are Rule 1.7 (concurrent conflicts), Rule 1.11 (government officers and employees), and Rule 1.10 (imputation).

Citations and references

Rules of Professional Conduct:

• MR 1.7 (conflict of interest: current clients)
• MR 1.11 (special conflicts for former and current government officers and employees)
• MR 1.10 (imputation of conflicts of interest)
• NY Canon 5, Canon 9; EC 5-14, EC 5-15, EC 8-8, EC 9-2, EC 9-6; DR 5-105(A), (B), (C), (D)

Other opinions cited:

• N.Y. State 450 (1976), N.Y. State 143 (1970): part-time municipal attorneys and private clients
• N.Y. State 392 (1975): a public attorney's duty to avoid the appearance of impropriety
• ABA Formal Op. 136 (1935): accepting public office despite an existing client's conflicting interests

See also

• NY State Bar Op. 484: A zoning board member's private practice before town agencies
• NY State Bar Op. 501: Assistant town attorney defending the zoning board
• NY State Bar Op. 492: A part-time DA prosecuting a former private client

Source

• Landing page: https://nysba.org/opinion-482/