Ethics Opinion 143

By Committee on Professional Ethics

NEW YORK STATE BAR ASSOCIATION
Professional Ethics Committee Opinion

Opinion #143 -07/02/1970 (22-70)
Topic:  Conflict of Interest, Municipal attorneys, Part-time public employees
Digest: Part-time town attorney may not represent private clients before administrative agencies of town because of possible conflict which cannot be waived by a municipality

Code:  EC 5-16, EC 9-2, DR 5-101, DR 9-101, Canon 9

QUESTION

May a lawyer who is regularly employed by a municipality on part time basis represent private clients in matters before administrative agencies of the town?

OPINION

The town attorney who wishes to appear on behalf of a private party before a public agency of the same town has a duty to gain the best results for his client. Such an obligation may conflict with his duty as a town attorney to protect the interests of the municipality.
His association with the municipality may make him privy to some information which could influence the outcome of the matter and correspondingly raise a question of confidence and trust.
If there is doubt as to whether or not the acceptance of professional employment will involve a conflict of interests between two clients, or may require the use of information obtained through the service of another client, the employment should be refused. Canon 9 provides, “a lawyer should avoid even the appearance of professional impropriety.”
EC 5-16 in part provides:
“Thus before a lawyer may represent multiple clients, he should explain fully to each client the implication of the common representation and should accept or continue employment only if the clients consent.”
In prior opinions of this Committee and of other Professional Ethics Committees, it has been held that a public body cannot consent to dual representation if a conflict is involved. See: N.Y. State 110 (1969), N.Y. State 111 (1969) and opinions cited therein; Drinker, Legal Ethics p. 120.
It is the opinion of the Committee that a lawyer in these circumstances may not represent private clients in matters before administrative agencies of the municipality; irrespective of consent by the municipality.

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