When can a lawyer who works as a contract attorney for a county agency represent in private practice a client the lawyer encountered through that government work?
NY State Bar Ethics Opinion 810: Private clients of a government contract attorney
Short answer: A lawyer who serves as a contract attorney for a county agency may not privately represent a client in a matter the lawyer participated in for the agency while the client remains eligible for the agency's services, but may represent the client in a different matter, or one the agency does not cover, so long as the lawyer did not solicit the engagement.
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.
Plain-English summary
The inquirer is a contract attorney for a county Office for the Aging who also maintains a private practice in the same county. Clients who meet with the lawyer through the county office sometimes seek private representation, either by choice or because the matter falls outside the office's services or the client is ineligible. The committee addresses when the lawyer may take such clients privately.
The committee starts with DR 9-101(B), which bars a lawyer from representing a private client in a matter the lawyer participated in personally and substantially as a public officer or employee. It reads the rule to reach independent contractors who perform legal services for a public entity, not just formal employees, and to apply even where the contractor simultaneously maintains a private practice and even where the private representation is consistent with, not adverse to, the government's prior work. The animating concern, drawn from Canon 9 and opinions like N.Y. State 506 and 708, is preventing the use of a public office for private advantage and protecting public confidence in government agencies. So where the lawyer represented the client through the county office, the lawyer may not later privately represent that client in the same matter while the client remains eligible for the agency's representation.
The committee then turns to clients the lawyer met through the county office but did not represent in the matter now at issue, or whom the lawyer represented in a different matter. In those situations the lawyer may take the private engagement, provided the lawyer did not solicit it and tells the client about the county's services if the client may be eligible. DR 2-103(A) ordinarily permits in-person solicitation of a narrow class including former and existing clients, but the committee concludes a lawyer in the public's employ must scrupulously avoid using the public office to build a private practice, so solicitation of these clients is improper. Where the client is not eligible for the county's services, the committee sees little risk that the lawyer is trading on the public office, so the lawyer may undertake the matter absent solicitation. The opinion modifies N.Y. State 165 (1970) and 260 (1972) and limits their stricter public-defender rule to the criminal context.
In practice
The opinion holds, under the former Code as it stood at the time, that DR 9-101(B) bars a county contract attorney from privately representing a client in a matter the lawyer handled for the agency while the client remains eligible for the agency's representation, and that the lawyer may take a different matter, or one outside the agency's services, only if the lawyer did not solicit it (DR 2-103(A)) and disclosed any available agency services. The committee characterizes DR 9-101(B) as guarding against use of a public office for private advantage, applies it to independent contractors and to current as well as former government lawyers, and modifies N.Y. State 165 and 260 by confining their stricter public-defender rule to the criminal context.
Common questions
Q: Can a county contract attorney take a former agency client into private practice?
A: Sometimes. The committee concludes the lawyer may not privately handle a matter the lawyer worked on for the agency while the client stays eligible for agency services, but may take a different matter, or one the agency does not cover, if the lawyer did not solicit the client.
Q: Does DR 9-101(B) apply to a contractor rather than an employee?
A: Yes. The committee reads DR 9-101(B) to include independent contractors who perform legal services for a public entity, and to apply even while the lawyer simultaneously maintains a private practice.
Q: Can the lawyer solicit these clients?
A: No. Although DR 2-103(A) ordinarily allows in-person solicitation of former and existing clients, the committee concludes a lawyer in public employment must avoid using the public office to promote a private practice, so soliciting these clients is improper.
Q: What if the client is not eligible for the agency's services?
A: The committee concludes there is little risk the lawyer is trading on the public office in that situation, so the lawyer may undertake the matter so long as the lawyer did not solicit the representation.
Background and rules framework
The opinion interprets the former Code's bar on a government lawyer later handling a related matter, DR 9-101(B) (Canon 9; analogue of ABA Model Rule 1.11), the solicitation rule DR 2-103(A) (analogue of Model Rule 7.3), and DR 5-108(A) on duties to former clients (analogue of Model Rule 1.9). It traces a line of New York opinions extending the DR 9-101(B) policy to legal-aid and foster-care lawyers by analogy.
Citations and references
Rules of Professional Conduct:
- MR 1.11 (special conflicts for former and current government officers and employees)
- MR 1.9 (duties to former clients)
- MR 7.3 (solicitation of clients)
- Former Code DR 9-101(B); DR 2-103(A); DR 5-108(A); Canon 9
Cases:
- General Motors Corp. v. City of New York, 501 F.2d 639 (2d Cir. 1974), switching sides not required for the bar to apply
- Mendicino v. Whitchurch, 565 P.2d 460 (Wyo. 1977), legal-aid lawyer disciplined for privately representing a legal-aid client in the same matter
Other opinions cited:
- N.Y. State 506 (1979): assistant county attorney barred from later private representation of the same party
- N.Y. State 708 (1998): DR 9-101(B) policy applied to a private foster-care agency lawyer
- N.Y. State 165 (1970) and 260 (1972): modified by this opinion; stricter public-defender rule limited to the criminal context
See also
- NY State Bar Op. 811: Public defender reviewing conflict counsel's bills
- NY State Bar Op. 1029: Conflicts for government lawyers with prior private clients
- NY State Bar Op. 1074: Part-time social services lawyer taking assigned cases
Source
- Landing page: https://nysba.org/ethics-opinion-810/