Can a part-time assistant city attorney, or other lawyers in that attorney's private firm, represent private clients before city agencies?

Plain-English summary

A part-time assistant city attorney planned to join a private firm that sometimes appears before city agencies, and asked whether the firm could continue that work. The committee found no general bar to a part-time public attorney also practicing privately, but held that conflict-of-interest principles restrict where both the attorney and the firm may appear. Under DR 5-105 and EC 5-14 and 8-8, a lawyer must avoid employment that would dilute loyalty to a client, and a lawyer holding public office must avoid both actual conflicts and the foreseeable possibility of conflict. The committee stressed that a public attorney cannot rely on the DR 5-105(C) consent cure, because a public body cannot consent to the dual representation.

The committee explained that representing a private client before the municipality can pit the lawyer's duty to get the best result for the private client against the duty to protect the municipality, and can raise concerns about access to official information, implicating Canon 9's command to avoid even the appearance of impropriety. It therefore held that a part-time city attorney may not appear for private clients before city agencies for which the city attorney's office provides legal representation or assistance; because the corporation counsel's office has broad, city-wide responsibilities, that disqualification will reach most or all city agencies. The committee declined to impose a flat per se bar, adopting instead the functional analysis of N.Y. State 484: a part-time municipal attorney may appear before unrelated agencies if the proposed representation and the agency are unrelated to the attorney's public function, with any doubt resolved against representation.

On imputation, the committee held that if the public attorney is personally barred, no member or associate of the firm may take the matter under DR 5-105(D), and the attorney's exact title or role within the firm does not matter. It identified one narrow exception: where a former public employee is disqualified under DR 9-101(B), the firm may proceed if that lawyer is screened from the matter; that screening exception applies only to the former-public-employee situation and not to the ongoing conflicts addressed here. A footnote added that a part-time municipal attorney with responsibility for criminal proceedings is disqualified from representing private clients in criminal matters in all state courts. This opinion was later modified by N.Y. State 629 (1992), which abandoned the flat rule that a government body can never consent to a conflict.

Currency note

This opinion was modified by N.Y. State 629 (1992), which held that a governmental entity may consent to a conflict where the consent satisfies DR 5-105(C), the entity is legally authorized, and the process protects the public trust; the flat "a public body cannot consent" premise of this opinion no longer holds in full. This opinion was also issued in 1989, under New York's former Code of Professional Responsibility, which New York replaced with the Rules of Professional Conduct in 2009 (former and current government-lawyer conflicts now appear chiefly at Rule 1.11, with general conflict and imputation rules at 1.7 and 1.10). 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 part-time city attorney represent private clients before city agencies?

A: Not before associated agencies. The committee held that the attorney may not appear for private clients before any city agency the attorney's office is associated with, which for a corporation counsel's office reaches most or all agencies, but may appear before unrelated agencies if the matter is unrelated to the public function.

Q: Can the attorney's law firm take a matter the attorney personally cannot?

A: No. The committee held that if the part-time public attorney is barred, DR 5-105(D) disqualifies the entire firm, and the attorney's title or limited role within the firm does not change that result.

Q: Is there any screening exception?

A: Only for former public employees. The committee held that where a former public employee is disqualified under DR 9-101(B), the firm may proceed if that lawyer is screened, but that exception does not apply to a current part-time public attorney.

Q: Could the city consent to the dual representation?

A: Under this 1989 opinion, no. The committee held a public body could not consent. That premise was modified by N.Y. State 629 (1992), which allowed government consent on conditions.

Background and rules framework

The opinion interpreted the New York Code conflict provisions DR 5-105(A)-(D), the bar on using a public position for a client's benefit (DR 8-101(A)(1)), the former-public-employee rule (DR 9-101(B)), and the appearance-of-impropriety principle of Canon 9 (with EC 5-2, 5-14, 5-15, 8-8, 9-3, 9-6). The closest Model Rule analogues are Rule 1.11 (special conflicts for current and former government officers and employees), Rule 1.7 (concurrent conflicts), and Rule 1.10 (imputation).

Citations and references

Rules of Professional Conduct:

• MR 1.11 (special conflicts of interest for government lawyers)
• MR 1.7 (concurrent conflicts of interest)
• MR 1.10 (imputation of conflicts within a firm)
• NY Canon 9; DR 5-105(A)-(D); DR 8-101(A)(1); DR 9-101(B); EC 5-2, 5-14, 5-15, 8-8, 9-3, 9-6

Other opinions cited:

• N.Y. State 484 (1978): the functional-relatedness test for a part-time municipal lawyer appearing before other agencies
• N.Y. State 502 (1978); N.Y. State 568 (1985): the narrow DR 9-101(B) screening exception to vicarious disqualification
• N.Y. State 392 (1975): a part-time public lawyer's heightened duty to avoid the appearance of impropriety
• N.Y. State 629 (1992): later modifying this opinion's bar on government consent

See also

• NY State Bar Op. 629: Conflicts of interest among governmental entities
• NY State Bar Op. 605: A public defender's office facing a former client as a prosecution witness

Source

• Landing page: https://nysba.org/opinion-603/