Can a lawyer publicly take a personal position, such as in bar association or legislative activity, that is contrary to a client's interests?
Apply this to your situation
This page answers the general question as of 1997. Ezel answers yours: whether it's allowed on your facts, under the current New York Rules of Professional Conduct, with citations.
Plain-English summary
The Committee acted after learning that lawyers had been pressured by clients not to express public support for positions in bar association or legislative activities. It reaffirmed that a lawyer may resist a client's effort to curb the lawyer's expression of personal views on public issues, so long as the lawyer does not reveal a confidence or take a position that directly and adversely affects a specific client representation.
The Committee grounded the right in EC 7-17, which states that loyalty applies only to the lawyer's professional duties and implies no obligation to adopt a viewpoint favorable to the client, and EC 8-1, which encourages lawyers to propose and support legal-system reforms without regard to clients' interests, reinforced by the lawyer's First Amendment rights. It concluded that a lawyer need not obtain a client's consent to engage in public discourse differing from the client's view, and that professional detachment is one of the qualities a lawyer brings to each client.
The Committee identified two limits. Under DR 4-101(B), the lawyer may not misuse or reveal a client confidence while discussing a public issue. Under DR 5-101(A), the lawyer may not publicly take a policy position adverse to a current client if doing so would materially and adversely affect the representation in a pending matter; the example given is a lawyer publicly arguing one side of an issue the lawyer must personally argue the opposite of before a tribunal, which could undermine the lawyer's credibility. The Committee added that a closed-door bar committee discussion is not "public" speech, that another firm lawyer's advocacy on the issue does not automatically disqualify a non-involved colleague from voicing a personal view (DR 5-105(D)), and recommended prefacing remarks with a disclaimer that the views are the lawyer's own; where consent is not required, giving the client an opportunity to terminate the representation may still be desirable.
Currency note
This opinion was issued in 1997, before New York replaced the Code of Professional Responsibility (the Disciplinary Rules and Ethical Considerations cited here) with the New York Rules of Professional Conduct, effective April 1, 2009. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.
Common questions
Q: Can a lawyer publicly support a position a client opposes?
A: The opinion concluded a lawyer may publicly take personal positions on controversial issues without regard to whether they align with the client's views, and without the client's consent, so long as confidences and zealous representation are protected.
Q: When must the lawyer hold back?
A: The Committee concluded the lawyer may not reveal a client confidence (DR 4-101(B)) and may not take a public policy position adverse to a current client that would materially and adversely affect the representation in a pending matter (DR 5-101(A)).
Q: Does a colleague's involvement in the matter restrict the lawyer's speech?
A: Not automatically. The opinion concluded that the imputed-disqualification rule (DR 5-105(D)) should not automatically bar a lawyer from voicing a personal view merely because another lawyer in the firm is handling the matter; a disclaimer that the views are the lawyer's own is recommended.
Background and rules framework
The opinion was decided under New York's then-governing Code of Professional Responsibility: DR 4-101(B) (preserving client confidences) and DR 5-101(A) (the lawyer's own personal-interest conflict), with ECs 7-17 and 8-1 on a lawyer's freedom to take public positions and support legal reform. The Model Rules analogues are Rule 1.6 (confidentiality), Rule 1.7 (personal-interest conflicts), and Rule 6.4 (law reform activities). The Committee analogized to positional (issue) conflicts (N.Y. City Formal Op. 1990-4; ABA Formal Op. 93-377).
Citations and references
Rules of Professional Conduct:
- New York Code DR 4-101(B), DR 5-101(A); ECs 7-17, 8-1 (Model Rules 1.6, 1.7, 6.4 analogues)
Cases:
- Johnston v. Koppes, 850 F.2d 594 (9th Cir. 1988), a lawyer's convictions and First Amendment protection
Other opinions cited:
- N.Y. City Formal Op. 1990-4; ABA Formal Op. 93-377; Restatement (Third) of the Law Governing Lawyers sections 206, 209
See also
- NYC Bar Ethics Op. 2025-5: Conflicts Arising From a Lawyer's Personal Beliefs
- NYC Bar Ethics Op. 1996-3: Representing an Adversary Lawyer
Source
Get today's answer for your situation
You just read a 1997 opinion on this question. Ezel checks the current New York Rules of Professional Conduct and answers your specific situation, with citations.
Opens in Ezel Pro. Every answer cites the rules it relies on.