Ezel / Ethics Opinions / NYSBA
NYSBA 2013-06-10

Can a government lawyer challenge his own furlough and also defend the agency against other employees' furlough appeals?

Short answer: The lawyer may file his own furlough appeal if it does not impermissibly affect representing the agency, but if he files it he generally cannot also defend the agency against similar appeals. If he does not file his own appeal, he may defend the agency with the agency's informed written consent; the conflict is imputed to colleagues but they may proceed with consent if they file no appeal of their own.
Currency note: this opinion is from 2013
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 Not binding precedent.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 968: Government lawyer conflicts in challenging a furlough

Short answer: A federal government lawyer subject to a sequestration furlough may file his own challenge before the Merit Systems Protection Board if it does not impermissibly affect his representation of the agency, but if he files it he generally may not also defend the agency against other employees' similar challenges; if he does not file his own appeal, he may defend the agency with the agency's informed written consent, and the conflict imputed to colleagues may likewise be waived where those colleagues file no appeal of their own.

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

Civilian lawyers admitted in New York but working for federal agencies faced sequestration furloughs of up to 22 days and could challenge them before the Merit Systems Protection Board (MSPB). They asked whether they could pursue their own MSPB appeals and whether their own exposure to the furlough created a conflict in defending the agency against other employees' appeals (¶¶ 1-3).

The committee first applies Rule 8.5(b)'s choice-of-law rule. Because New York's Appellate Divisions kept the word "court" (not "tribunal") in Rule 8.5(b)(1), the MSPB, an administrative tribunal, is not a "court," so the rules of the MSPB's seat do not automatically govern; for a lawyer admitted only in New York, New York's rules apply (¶¶ 4-7).

On filing one's own appeal, the committee analyzes Rule 1.1(c)(2)'s bar on intentionally prejudicing a current client. Surveying cases and opinions allowing in-house and government lawyers to assert their own employment rights so long as actual representation of the client is not compromised, it concludes a lawyer does not violate Rule 1.1(c)(2) merely by appealing his own furlough, especially since the challenges turn on notice and due-process issues common to many employees rather than client confidences (¶¶ 8-15).

On defending the agency, the committee finds a Rule 1.7(a)(2) personal-interest conflict: a good outcome for the agency (upholding the furlough) harms the lawyer's own financial interest, and vice versa, so in the usual case there is a "significant risk" to the lawyer's professional judgment (¶¶ 16-17). That conflict is imputed under Rule 1.10(a) to other lawyers in the office, because a government law office is a "firm" under Rule 1.0(h) (¶¶ 18-20). Waiver runs through Rule 1.7(b): a lawyer who has not filed his own appeal can usually form the reasonable belief that he can competently and diligently defend the agency, so the agency may consent; but a lawyer who has filed his own appeal raising the same issues generally cannot form that belief, making his own conflict nonconsentable (¶¶ 21-24). Crucially, the committee holds that only the underlying conflict, not its nonconsentability, is imputed: a colleague's imputed conflict is judged from the colleague's position under Rule 1.10(d), so the agency may consent to representation by a colleague who is not pursuing his own appeal (¶¶ 25-27). The committee notes Rule 1.7(b)(3)'s same-litigation bar is not presented, and that a rule of necessity might permit otherwise-barred representation if no other lawyer can act (¶¶ 28-29).

In practice

Under this opinion, as the rules stood at the time, a government lawyer's exposure to a furlough creates a Rule 1.7(a)(2) personal-interest conflict in defending the agency against furlough appeals, and that conflict is imputed across the government law office as a "firm" under Rules 1.0(h) and 1.10(a). The opinion holds the lawyer may still pursue his own MSPB appeal, because Rule 1.1(c)(2) does not bar asserting personal employment rights where actual representation is not compromised (¶¶ 15, 17-20).

Per the opinion, whether the lawyer or a colleague may defend the agency turns on consent and on who filed an appeal: a lawyer who filed his own appeal raising the same issues generally has a nonconsentable conflict, but a lawyer (or colleague) who has not filed can defend the agency with the agency's informed written consent under Rule 1.7(b) and Rule 1.10(d) (¶¶ 23-25). The committee did not resolve whether a rule of necessity applies on these facts (¶ 29).

Common questions

Q: Can a government lawyer file his own appeal challenging a furlough?

A: Yes, generally. The opinion concludes filing a personal furlough appeal does not by itself violate Rule 1.1(c)(2), so long as it does not compromise the lawyer's actual representation of the agency; furlough challenges typically raise common notice and due-process issues, not client confidences (¶ 15).

Q: Can that same lawyer also defend the agency against other employees' furlough appeals?

A: Generally no, if he filed his own appeal raising the same issues. The opinion holds he usually cannot reasonably believe he could competently and diligently defend the agency, making his conflict nonconsentable (¶ 24).

Q: If the lawyer does not file his own appeal, can he defend the agency?

A: Yes, with consent. The opinion holds a lawyer who has not filed can usually form the required reasonable belief, so the agency may give informed written consent under Rule 1.7(b) (¶¶ 22-23).

Q: Does one lawyer's furlough conflict disqualify the whole government office?

A: It is imputed under Rule 1.10(a), because a government law office is a "firm," but only the underlying conflict, not its nonconsentability, is imputed; a colleague who files no appeal of his own may defend the agency with the agency's consent under Rule 1.10(d) (¶¶ 18-20, 25).

Background and rules framework

The opinion applies Rule 8.5(b) (choice of law; analogous to Model Rule 8.5), Rule 1.1(c)(2) (a New York-specific duty not to intentionally prejudice a client, tracking former DR 7-101(A)(3)), Rule 1.7(a)(2) and (b) (personal-interest conflicts and waiver; Model Rule 1.7), Rule 1.10(a) and (d) (imputation and waiver of imputed disqualification; Model Rule 1.10), Rule 1.0(h) (government law office as a "firm"), and Rule 1.11(d) (current government lawyers; Model Rule 1.11), including its rule-of-necessity strand.

The committee notes New York rejected a proposal to exempt government law offices from imputation, distinguishing the ABA Model Rules approach, and aligns its waiver analysis with D.C. Opinion 365 (2013) on identical furlough facts.

Citations and references

Rules of Professional Conduct:

  • Model Rule 1.7 / NY Rule 1.7(a), 1.7(b) (personal-interest conflicts; waiver)
  • Model Rule 1.10 / NY Rule 1.10(a), 1.10(d) (imputation; waiver of imputed disqualification)
  • Model Rule 1.11 / NY Rule 1.11(d) (current government lawyers; rule of necessity)
  • Model Rule 8.5 / NY Rule 8.5(b) (choice of law)
  • NY Rule 1.1(c)(2) (no intentional prejudice to a client); NY Rule 1.0(h) (definition of "firm")

Cases:

  • Santa Clara County Counsel Attorneys Assn. v. Woodside, 7 Cal. 4th 525 (1994), in-house lawyers may assert employment rights if representation is not compromised
  • Nordling v. Northern States Power Co., 478 N.W.2d 498 (Minn. 1991), in-house counsel's contract claim permitted

Other opinions cited:

  • District of Columbia Opinion 365 (2013): same furlough conflict; reasonable-belief test hard to meet if the lawyer filed a similar complaint
  • N.Y. State 578 (1986): lawyers may join a union subject to the conflict rules
  • N.Y. State 900 (2011): a County Attorney's office is a "firm" for imputation

See also

Source