If lawyers in a small legal services corporation also keep private practices, can one of them privately represent a party opposing someone the corporation represents in the same case?
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This page answers the general question as of 2006. Ezel answers yours: whether it's allowed on your facts, under the current New York Rules of Professional Conduct, with citations.
Plain-English summary
A private practitioner joined a small group of lawyers to form a qualified legal services corporation that provides indigent representation under a county Article 18-B plan in criminal and Family Court matters. The lawyers do not consult one another about the corporation's cases, but each receives a pro rata share of the county fees paid to the corporation and each keeps a separate private practice. The committee was asked whether one of these lawyers may privately represent a respondent in a Family Court proceeding in which the petitioner is represented by the corporation.
The committee answers no. It has long held that the legal staff of a small legal services corporation functions like a law firm, consistent with the Code's definition of "law firm," which includes a qualified legal assistance organization. Because the lawyers are the corporation's legal staff, they are treated as a firm, so where one of them would be disqualified by the concurrent representation of another party with a differing interest in the same matter, all are vicariously disqualified under DR 5-105(D), absent informed consent. The committee notes the imputation rule protects client confidences and also reflects the public's expectation that lawyers in a firm, including a legal services office, share a real and substantial connection and financial interest that aligns them.
The committee adds that consent would not cure this particular conflict, because two lawyers from the same "law firm" would be representing opposing parties in a single litigation.
In practice
The opinion holds, under the former Code as it stood at the time, that the lawyers of a small legal services corporation are treated as a law firm, so DR 5-105(D) imputes one lawyer's disqualifying conflict to all of them; none may privately represent the respondent in a Family Court matter in which the corporation represents the petitioner. The committee grounds the firm treatment in the Code's definition of "law firm" (which includes a qualified legal assistance organization) and the lawyers' shared pro rata fee interest, and concludes consent cannot cure the conflict because it would place two lawyers of the same firm on opposite sides of a single litigation.
Common questions
Q: Are lawyers in a small legal services corporation treated as a single firm for conflicts?
A: Yes. The committee concludes the corporation's legal staff functions like a law firm, consistent with the Code's definition of "law firm," so conflicts are evaluated on that basis.
Q: Can one of those lawyers privately oppose a party the corporation represents in the same case?
A: No. Under DR 5-105(D) the disqualifying conflict is imputed to all the corporation's lawyers, so none may take the private representation against a party the corporation represents in the same matter.
Q: Could the clients consent to allow it?
A: No. The committee concludes consent would not cure this conflict because it would have two lawyers from the same "firm" representing opposing parties in a single litigation.
Background and rules framework
The opinion interprets the former Code's imputation rule, DR 5-105(D) (an analogue of ABA Model Rule 1.10), against the underlying concurrent-conflict standard in DR 5-105 (Model Rule 1.7), and relies on the Code's definition of "law firm" to include a qualified legal assistance organization. It applies the firm-supervision duty of DR 1-104(A) as part of that framework.
Citations and references
Rules of Professional Conduct:
- MR 1.7 (concurrent conflicts of interest)
- MR 1.10 (imputation of conflicts within a firm)
- Former Code DR 1-104(A); DR 5-105(D); definition of "law firm"
Other opinions cited:
- N.Y. State 605 (1989): public defender and legal aid offices treated as firms
- N.Y. State 490 (1978): legal staff of a legal service organization
- N.Y. State 102 (1969): legal aid societies
See also
- NY State Bar Op. 811: Public defender reviewing conflict counsel's bills
- NY State Bar Op. 807: Imputation and same-firm buyer-seller representation
- NY State Bar Op. 1029: Conflicts for government lawyers with prior private clients
Source
- Landing page: https://nysba.org/ethics-opinion-804/
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