Can a governmental entity consent to waive a lawyer's conflict of interest in New York, or must the lawyer always decline when a government client is involved?

Plain-English summary

For about 25 years the committee had held that a governmental entity may not consent to a conflict of interest, so a lawyer who needed a government client's consent to take or keep a matter could not do so "because the public interest is involved." The committee traced this "government cannot consent" rule to ABA 16 (1929) and a handful of early-1930s ABA opinions, none of which gave a reasoned basis for the flat prohibition. The question presented was whether a lawyer must decline or withdraw solely because one of the clients whose consent is needed is a governmental entity.

The committee answered no and abandoned the per se rule. It noted that many state and local committees, New York and other courts, and the ABA itself had moved away from the rule, and that Model Rule 1.11(a), adopted in 1983, expressly contemplates governmental consent. The committee clarified that its prior statements were never legal conclusions about a government body's power to consent (a question of law it cannot decide), but ethical bars. It found a blanket ethical prohibition paternalistic and excessive, because the real concerns, corruption and improper influence, are already addressed by DR 9-101(C) (no claiming improper influence over a tribunal or official), DR 8-101(A) (no using public position for advantage), the dishonesty rule (DR 1-102(A)(4)), criminal statutes, and municipal ethics codes, and because DR 5-105(C)'s own "obviousness" test screens out cases where adequate representation is impossible.

The committee held that where a lawyer faces a conflict and one affected party is a governmental entity, the lawyer may accept or continue the representation with the entity's consent if there is full compliance with DR 5-105(C) (the obviousness test plus full disclosure) and all other disciplinary rules. Because public officials act in a public trust, the lawyer must also be satisfied that the official is legally authorized and empowered to consent, has complied with all legal prerequisites, and that the consent process precludes any reasonable public perception that consent was given inconsistently with that trust; for a municipality, public disclosure of the request ordinarily satisfies this. The committee modified its many prior opinions to this effect, while noting the outcomes in those opinions might not change, since consent could still fail the obviousness test, another rule could be violated, or the entity might lack legal authority to consent.

Currency note

This opinion was issued in 1992, under New York's former Code of Professional Responsibility, which New York replaced with the Rules of Professional Conduct in 2009. The conflict and government-lawyer provisions cited here have since been recast in Rules 1.7 and 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: Can a government agency waive a lawyer's conflict of interest in New York?

A: Yes. The committee abandoned the "government cannot consent" rule and held that a governmental entity may consent to a conflict if the consent complies with DR 5-105(C) and all other disciplinary rules.

Q: What extra conditions apply when the consenting client is a government body?

A: The lawyer must be reasonably certain the entity is legally authorized to waive the conflict and has met all legal prerequisites, and the consent process must preclude any reasonable public perception that consent was given inconsistently with the public trust; public disclosure of the request ordinarily satisfies this for a municipality.

Q: Did the committee decide whether a particular agency has legal power to consent?

A: No. The committee said the entity's legal authority to consent is a question of law it cannot address; the lawyer must determine that the entity is authorized and has followed the required process.

Background and rules framework

The opinion interpreted DR 5-105(C) (the obviousness test and full disclosure for waivable conflicts), supported by DR 9-101(C), DR 8-101(A), the dishonesty rule (DR 1-102(A)(4)), and Canon 9, as applied where the consenting client is a governmental entity. It relied on Model Rule 1.11(a), which contemplates governmental consent. The closest Model Rule analogues are Rule 1.7 (concurrent conflicts and informed consent) and Rule 1.11 (government officers and employees).

Citations and references

Rules of Professional Conduct:

• MR 1.7 (concurrent conflicts of interest)
• MR 1.11 (government officers and employees; consent)
• NY DR 5-105(C); DR 8-101(A); DR 9-101(C); DR 1-102(A)(4); Canon 9

Cases:

• Unified Sewerage Agency v. Jelco Inc., 646 F.2d 1339 (9th Cir. 1981): "public interest" language is shorthand for inability to provide adequate representation
• People v. Hobson, 39 N.Y.2d 479 (1976): reliance interests and departing from precedent

Other opinions cited:

• ABA 16 (1929): origin of the "government cannot consent" rule
• ABA Informal Op. 1433 (1978): a government body's power to consent is a question of law
• N.Y. City 894 (1978): legal authority of a government to consent is a question of law

See also

• NY State Bar Op. 631: A title-insurer agent serving as counsel to a public agency
• NY State Bar Op. 630: A town's special counsel before the planning and zoning boards
• NY State Bar Op. 634: A former government lawyer representing other agencies
• NY State Bar Op. 652: Contacting a represented government entity's employees

Source

• Landing page: https://nysba.org/opinion-629/