After leaving a Legal Aid Society, can a lawyer represent the same indigent clients for a fee in private practice?

Plain-English summary

The committee was asked whether a former staff attorney of a Legal Aid Society could continue, in private practice, to represent for a fee the indigent persons he had served while employed by the Society. It first observed that DR 9-101(B), which bars accepting private employment in a matter for which a lawyer had substantial responsibility as a public employee, was not literally dispositive: legal services corporations are private non-profit corporations, not public agencies, even when heavily publicly funded.

The committee treated DR 9-101(B) as illustrating a broader Canon 9 policy of promoting public confidence in the justice system and the agencies created to serve it. Citing N.Y. State 165 (1970) on part-time public defenders, it reasoned that a Legal Aid staff attorney's position toward the indigent he serves is closer to that of a public defender than to a private practitioner. It also noted the Code's own encouragement that lawyers support legal services to the indigent (EC 1-4, EC 2-24, EC 2-25, EC 2-29) and observed it would be anomalous to let former staff attorneys undermine the institutions the Code urges lawyers to support.

Because the absolute DR 9-101(B) bar did not literally apply, the committee fashioned a rule from the Code's purposes. Former staff attorneys may not represent for a fee persons they previously served on matters for which they had substantial responsibility at the Society, so long as those persons remain eligible to receive that representation without charge. On new matters, former staff attorneys may charge a fee provided the person is fully informed of eligibility to receive those services without charge from another source. Whether the matter is old or new, and regardless of eligibility, the former staff attorney may always continue to represent prior clients without charge, pro bono publico. The question was answered in the affirmative subject to those qualifications.

Currency note

This opinion was issued in 1981, before New York replaced the Code of Professional Responsibility with the Rules of Professional Conduct in 2009 (duties to former clients now appear at Rule 1.9 and the pro bono aspiration at Rule 6.1). 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 Treat this page as historical context, not current guidance.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 Legal Aid lawyer charge an old client for the same case he handled at the Society?

A: Not while that client still qualifies for free representation. The committee held that charging for a matter the lawyer had substantial responsibility for at the Society is improper as long as the client remains eligible to receive that work without charge.

Q: What about taking a new matter for a former Legal Aid client?

A: The lawyer may charge a fee for a new matter, but only after fully informing the person that he or she is eligible to receive those services without charge from another source.

Q: Does DR 9-101(B)'s bar on former public employees apply directly?

A: No. The committee found legal services corporations are private non-profit corporations, not public agencies, so DR 9-101(B) was not literally dispositive; it applied the rule's underlying Canon 9 policy instead.

Background and rules framework

The opinion applied Canon 9 (avoiding the appearance of impropriety) and DR 9-101(B) (accepting private employment after public service), read together with the Code's pro bono provisions (EC 1-4, EC 2-24, EC 2-25, EC 2-29). The closest current Model Rule analogues are Rule 1.9 (duties to former clients) and Rule 6.1 (voluntary pro bono service).

Citations and references

Rules of Professional Conduct:

• MR 1.9 (duties to former clients)
• MR 6.1 (pro bono service)
• NY Canon 9, EC 1-4, EC 2-24, EC 2-25, EC 2-29, DR 9-101(B)

Other opinions cited:

• N.Y. State 165 (1970): part-time public defender may not privately charge persons found ineligible for assistance
• N.Y. State 506 (1979), 426 (1976), 260 (1972): public-role conflict line
• N.Y. State 531 (1981), 485 (1978), 456 (1976): supporting legal services to the indigent

See also

• NY State Bar Op. 533: Public defender's office conflict on an ineffective-assistance appeal
• NY State Bar Op. 526: Part-time assistant DA also serving as probation officer

Source

• Landing page: https://nysba.org/opinion-534/