Can a lawyer who serves as counsel to a professional society defend a member in a state disciplinary proceeding?

Plain-English summary

The committee was asked whether a lawyer who serves as counsel to a state or local professional society may represent a member of that society in misconduct proceedings under Article 130 of the Education Law, which the Board of Regents and Department of Education administer for the licensed professions other than law. It answered yes, but only in defined circumstances.

The committee noted that a society need not be involved in disciplining its members under the statutory scheme, but that some societies reserve their own authority to discipline members and may file complaints that eventuate in Article 130 proceedings, while others have no disciplinary function at all. With little authority on point, the committee drew on ABA Inf. 1051 (1968), which found it improper for a lawyer on the governing body of a society that administered disciplinary hearings to defend a member at such a hearing, the problem being the lawyer's conflicting loyalties to the society and the client.

Reasoning from the lawyer's allegiance to the society that employs him (EC 5-1, EC 5-2, EC 5-14, EC 5-18), the committee held that counsel to a society that instituted the complaint, or that would foreseeably discipline the member for misconduct relevant to the proceeding, is precluded from defending the accused. Such counsel cannot defend a person against whom his society has lodged a complaint, or in a proceeding about misconduct he might foreseeably be obliged to use against the member (DR 5-105(A) and (B); EC 5-14, EC 5-15). But where the society has neither caused the proceeding nor may foreseeably discipline the member for relevant misconduct, there is no present or potential conflict, and counsel's allegiance to the society would not be compromised, so the representation is permissible. The question was answered in the affirmative, subject to those qualifications.

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, and representation of an organization by Rule 1.13). 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 Treat this page as historical context, not current guidance.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 professional society's lawyer defend one of its members in a discipline case?

A: Under this opinion, only where the society neither brought the complaint nor would foreseeably discipline the member for related misconduct. Otherwise the lawyer's loyalty to the society conflicts with defending the member.

Q: Why does it matter whether the society itself disciplines members?

A: Because counsel owes allegiance to the society. If the society complained or might discipline the member, counsel could be obliged to use the same misconduct against him, creating a conflict under DR 5-105.

Background and rules framework

The opinion applied DR 5-105(A) and (B) (declining or not continuing employment likely to involve differing interests), informed by EC 5-1, EC 5-2, EC 5-14, EC 5-15, and EC 5-18 on a lawyer's loyalty to the entity that employs him, in the setting of Education Law Article 130 discipline. The current Model Rule analogues are Rule 1.7 (concurrent conflicts of interest) and Rule 1.13 (organization as client).

Citations and references

Rules of Professional Conduct:

• MR 1.7 (concurrent conflicts of interest)
• MR 1.13 (organization as client)
• NY EC 5-1, EC 5-2, EC 5-14, EC 5-15, EC 5-18; DR 5-105(A) and (B)

Statutes:

• N.Y. Education Law secs. 6509 et seq. (Article 130; professional misconduct)

Other opinions cited:

• ABA Inf. 1051 (1968): improper for a society's governing-body lawyer to defend a member at a disciplinary hearing the society administers

See also

• NY State Bar Op. 501: Town attorney caught between the town board and its zoning board
• NY State Bar Op. 504: County attorney representing taxpayers on assessments

Source

• Landing page: https://nysba.org/opinion-498/