A lawyer sits on a municipal board and is 'of counsel' to a law firm. Can the lawyer or the firm appear before that board on behalf of private clients?

Plain-English summary

The committee answered three questions about a lawyer who serves on a municipal board and is "of counsel" to a law firm. First, the lawyer-member may not personally appear before the board. The committee traces a line of opinions back to 1970 resting on two rationales: preventing private clients from retaining a part-time public official to gain an improper advantage, and preventing public suspicion that a client gains an advantage by hiring the official.

Second, whether the firm to which the lawyer is "of counsel" is also barred depends on the facts and circumstances. The committee holds (clarifying N.Y. State 655) that an "of counsel" lawyer is "associated" with the firm for purposes of DR 5-105(D), so conflicts that would disqualify the lawyer-member under DR 5-101(A) are imputed to the entire firm. Those conflicts may be waivable by the private client after adequate disclosure.

Third, recusal alone does not resolve the matter. The lawyer-public officer must recuse from any board matter in which the firm appears (the committee cites N.Y. State 145 and notes most boards' own ethics codes likely require recusal). Even with recusal, the firm may be barred from appearing if doing so would suggest the client is getting special access to the remaining board members or otherwise create an appearance of impropriety. Whether that duty arises turns on factors such as the size of the firm and the board, how long the of-counsel lawyer has practiced with the firm, and how publicly the lawyer is identified with it. The committee also notes that where a board's own ethics code governs recusal and firm appearances, that code should control, because recusal rules protect the board's processes while the Code's primary concern is the representation of the client.

In practice

Under the New York Code as it stood at the time, the opinion holds that the personal bar on a board member appearing before the board is firm, and that the "of counsel" relationship pulls the firm into the analysis through DR 5-105(D) imputation. The committee separates three layers: an imputed DR 5-101(A) conflict the client may waive; a mandatory recusal of the lawyer-member from board matters involving the firm; and a residual appearance-of-impropriety bar that can stop the firm from appearing even after recusal, depending on firm and board size and the lawyer's public identification with the firm. It also defers to a board's own conflict-of-interest code where one addresses the question.

Common questions

Q: Can a lawyer who sits on a municipal board represent private clients before that board?

A: No. The committee reaffirms a long line of opinions holding the lawyer-member may not appear before the board on which the lawyer serves.

Q: Is "of counsel" treated as being associated with the firm?

A: Yes. Clarifying N.Y. State 655, the committee holds an "of counsel" lawyer is "associated" with the firm under DR 5-105(D), so the lawyer-member's conflicts are imputed to the firm.

Q: Can the private client waive the conflict so the firm can appear?

A: The imputed DR 5-101(A) conflict may be waivable after adequate disclosure, but the member must still recuse, and the firm may remain barred if its appearance would suggest special access or create an appearance of impropriety.

Q: Does recusal by the board member fix the problem?

A: Not necessarily. The committee says even with recusal the firm may be barred where appearing would suggest the client has special access to the remaining members; the analysis depends on factors like the size of the firm and board.

Background and rules framework

The opinion applies New York's former Code of Professional Responsibility. DR 5-101(A) governs personal-interest conflicts (a facet of Model Rule 1.7), and DR 5-105(D) imputes a lawyer's disqualification to all lawyers "associated" in a firm (the imputation principle of Model Rule 1.10). DR 8-101(A)(2) and DR 9-101 address a lawyer holding public office and the appearance of impropriety (the public-officer concerns now in Model Rule 1.11). Canon 9 and EC 8-8 supply the appearance-of-impropriety and public-official framing. DR 1-102 addresses misconduct generally (analogous to Model Rule 8.4). The opinion's key move is extending "associated with" in DR 5-105(D) to the of-counsel relationship.

Citations and references

Rules of Professional Conduct:

• MR 1.7 (personal-interest conflicts); NY DR 5-101(A)
• MR 1.10 (imputation among associated lawyers); NY DR 5-105(D)
• MR 1.11 (lawyer holding public office); NY DR 8-101(A)(2), DR 9-101
• MR 8.4 (misconduct); NY DR 1-102

Other authorities cited:

• N.Y.C. Conflict of Interest Board Advisory Op. 96-04: a board member's firm may not appear even if the member is recused
• N.Y.S. Ethics Comm'n Advisory Op. 99-12: restrictions on an of-counsel commission member may not reach the firm where the lawyer does not share relevant net revenues

Other opinions cited:

• N.Y. State 655 (1993): clarified on the "of counsel" association point
• N.Y. State 431 (1976), 435 (1976), 510 (1979), 692 (1997), 702 (1998): rationales for disqualifying part-time public officials
• N.Y. State 145 (1970): duty of a public-officer lawyer to abstain from matters involving the firm
• N.Y. State 513 (1979): appearance of impropriety bars a firm partner from a conflicting public role

See also

• NY State Bar Op. 793: Of-counsel attorney conflict and imputation
• NY State Bar Op. 909: Imputation of conflicts of a member of a town board
• NY State Bar Op. 1130: Law firm conflict, town attorney and zoning applicant
• NY State Bar Op. 1242: Town attorney's private client in a neighboring town

Source

• Landing page: https://nysba.org/ethics-opinion-773/