Ethics Opinion 176

By Committee on Professional Ethics

NEW YORK STATE BAR ASSOCIATION
Professional Ethics Committee Opinion

Opinion #176 03/01/1971 (62-70)
Topic: Conflicting Interests for School District

Digest: Former attorney for school district may not represent citizens group opposed to policies of newly constituted school board
Code: DR 9-101(B); EC 4-5, 9-3

QUESTION

A citizens group formed to oppose a school district merger retained an attorney. When members of this group won election to the local Board of Education, the Board (which had become an “anti-merger” Board) retained the same attorney to represent the School District. His work as attorney for the School District continued for a number of years, and included giving the Board legal advice relating to the merger issue. When the anti-merger members of the Board were recently defeated for reelection, the attorney’s School District retainer was terminated.The newly-constituted Board of Education has reopened merger negotiations, and the defeated board members have reactivated their “anti-merger” citizens group. They wish to be represented by their former attorney, who states that no secrets or confidences of the Board will be involved, since “everything” relating to the merger matter while he represented the School District was a matter of public record.May the attorney accept the proffered retainer, which would involve providing legal service to the former board members and others against a former client, the local Board of Education?

OPINION

This inquiry is controlled by the provisions of EC 9-3 and DR 9-101(B).EC 9-3 provides:”After a lawyer leaves judicial office or other public employment, he should not accept employment in connection with any matter in which he had substantial responsibility prior to his leaving, since to accept employment would give the appearance of impropriety even if none exists.”DR 9-101(B) provides:”A lawyer shall not accept private employment in a matter in which he had substantial responsibility while he was a public employee.”These provisions mandate the disqualification of the former attorney for the School District.The inquiry made to this Committee does not present and we leave open the issue of whether the newly-constituted Board of Education could, if it were so inclined, consent to the lawyer accepting the proffered retainer. Cf. EC 4-5.  We call attention, however, to the authorities which indicate that consent of the immediate parties may not be sufficient to terminate the disqualification where the public interest is involved.  See N.Y. State 110 (1969), and Drinker,Legal Ethics,129 (1953).

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