Ezel / Ethics Opinions / NYSBA
NYSBA 1992-08-01

Can a lawyer who was a city's part-time general counsel later represent a different government agency in a matter he handled, and can his firm?

Short answer: The opinion concluded that the lawyer himself may not represent another government agency in a matter in which he participated personally and substantially for the city, but his firm may if he is screened off and gets no part of the fee.
Currency note: this opinion is from 1992
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked at the bottom of this page) is the authoritative source for any reliance.

NY State Bar Ethics Opinion 634: A former government lawyer representing other agencies

Short answer: The opinion concluded that a lawyer who served as a city's part-time general counsel may not, in private practice, represent another government agency in a matter in which he participated personally and substantially for the city, but other lawyers in his firm may do so if he is effectively screened from the matter and receives no part of the fee.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York State Bar Association's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.

View original opinion

Plain-English summary

A lawyer who had served part-time as general counsel for a city now wanted, in private practice, to represent another municipality in a matter involving the city in which he had participated personally and substantially. He asked whether he could do so, and whether members of his firm could.

The committee applied DR 9-101(B)(1), which bars a lawyer from representing a private client in a matter in which the lawyer participated personally and substantially as a public officer or employee. It read both key phrases broadly. A lawyer who draws a government paycheck is a "public employee," and "public officer" for this purpose includes district attorneys, county, city, town, and village attorneys, and corporation counsel, whether full or part-time and however titled, a more generic meaning than courts use for matters like residency requirements. The committee also held that a public entity can be a lawyer's "private client," because the focus is on the private nature of the lawyer's practice, not the public character of the client (citing General Motors Corp. v. City of New York and ABA Formal Op. 342). So the former part-time city counsel was personally disqualified.

On the firm, the committee quoted DR 9-101(B), which allows another lawyer in the disqualified lawyer's firm to undertake the matter only if the disqualified lawyer is effectively screened from any participation, direct or indirect, including discussion, is apportioned no part of the fee, and there are no other circumstances creating an appearance of impropriety. On those conditions, a firm colleague may represent the other agency. The committee answered the first question no and the second yes.

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 provisions on former government lawyers and screening have since been recast in 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: Does the bar apply to a part-time government lawyer?

A: Yes. The committee held that "public officer or employee" under DR 9-101 includes part-time municipal counsel, however titled or compensated, so the part-time former city counsel was covered.

Q: Can a government agency be a lawyer's "private client"?

A: Yes. The committee explained the test looks to the private nature of the lawyer's practice, not whether the client is public, so representing one agency against another is private employment.

Q: Can the disqualified lawyer's firm still take the matter?

A: Yes, with safeguards. Under DR 9-101(B), a firm colleague may proceed only if the disqualified lawyer is effectively screened, receives no part of the fee, and no other appearance of impropriety exists.

Background and rules framework

The opinion interpreted DR 9-101(B) of New York's former Code (representation by a former public officer or employee, and the screening conditions for the lawyer's firm). The closest Model Rule analogues are Rule 1.11 (former and current government officers and employees) and Rule 1.10 (imputation of conflicts). New York replaced the Code with the Rules of Professional Conduct in 2009; the provisions cited here are historical.

Citations and references

Rules of Professional Conduct:

  • MR 1.11 (former and current government officers and employees)
  • MR 1.10 (imputation of conflicts)
  • NY DR 9-101(B)

Cases:

  • General Motors Corp. v. City of New York, 501 F.2d 639 (2d Cir. 1974): representing a city in litigation is private employment

Other opinions cited:

  • ABA Formal Op. 342 (1975): meaning of "private employment" for a former government lawyer

See also

Source