Can an assistant county attorney privately represent a client in a matter he had handled for her in his official capacity?

Plain-English summary

The committee was asked whether an assistant county attorney, who had represented a wife in his official capacity in proceedings against her former husband under the Uniform Support of Dependents Law, could now privately represent her in an action against the same husband to recover arrearages due under a separation agreement. The committee answered no.

It restated the settled principle that lawyers in public employ, full or part-time, must scrupulously avoid using their public offices to promote their private interests and practices (citing N.Y. State 457, 435, and 392), and pointed to DR 9-101(B), which forbids a lawyer "to accept private employment in a matter in which he had substantial responsibility while he was a public employee." Drawing on ABA 342 (1975) for the meaning of "matter," the committee explained the term contemplates "a discrete and isolatable transaction or set of transactions between identifiable parties," and that the same issue of fact involving the same parties and conduct is the same matter. The wife's effort to secure support from her former husband satisfied that definition, so DR 9-101(B) would preclude the private representation.

The committee addressed two complications. First, although DR 9-101(B) is phrased in the past tense ("had substantial responsibility while he was a public employee") and the lawyer here had not left office, the committee found that immaterial: if a lawyer may not take such private employment after leaving office because of the suspicion he used his position to garner future business, then a fortiori he may not take it while still in office and "capable of abusing his office still further," which would exacerbate rather than lessen the appearance of impropriety. Second, the committee found it immaterial that the private representation's objectives were fully consistent with the public ones. The impropriety DR 9-101(B) addresses, it explained, is not representing conflicting interests but using a public office to secure a private advantage, so the proscription applies whether or not the private and public objectives align. The question was answered in the negative.

Currency note

This opinion was issued in 1979, before New York replaced the Code of Professional Responsibility with the Rules of Professional Conduct in 2009 (the successive-conflict rule for current and former government lawyers now appears at 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: Could the assistant county attorney privately handle the same support matter for the same client?

A: Under this opinion, no. The committee held DR 9-101(B) barred him from accepting private employment in a "matter" in which he had substantial responsibility as a public employee, and the support dispute was the same matter.

Q: Did it matter that he was still in office rather than a former public employee?

A: No. The committee held that taking the private case while still in office made the appearance of impropriety worse, not better, so the bar applied a fortiori.

Q: Did it matter that his private and public goals were the same?

A: No. The committee explained DR 9-101(B) targets using public office for private advantage, not conflicting interests, so alignment of objectives did not cure the impropriety.

Background and rules framework

The opinion applied DR 9-101(B) (barring private employment in a matter in which the lawyer had substantial responsibility as a public employee), informed by EC 9-2, EC 9-3, and EC 9-6 (avoiding the appearance of impropriety) and contrasted with EC 8-8 and DR 8-101 (a lawyer holding public office). It drew the definition of "matter" from ABA 342 (1975). The current Model Rule analogue is Rule 1.11 (special conflicts for current and former government officers and employees).

Citations and references

Rules of Professional Conduct:

• MR 1.11 (special conflicts of interest for former and current government officers and employees)
• NY EC 8-8, EC 9-2, EC 9-3, EC 9-6; DR 8-101, DR 9-101(B)

Statutes:

• N.Y. Uniform Support of Dependents Law (the underlying support proceeding)

Other opinions cited:

• N.Y. State 457 (1977), 435 (1976), 392 (1975): public lawyers may not use office to promote private practice
• N.Y. State 502 (1979) and 453 (1976): the scope of the public-office proscription
• ABA 342 (1975): definition of "matter" under DR 9-101(B)

See also

• NY State Bar Op. 510: Deputy town supervisor representing against the town
• NY State Bar Op. 513: Part-time city attorney whose partner holds a political role

Source

• Landing page: https://nysba.org/opinion-506/