Can a firm sue the State of New York while one of its lawyers serves pro bono as special counsel to a district attorney's office?

Plain-English summary

A firm asked whether it could keep representing clients in matters directly adverse to the State of New York while one of its attorneys provided pro bono representation as special counsel to the Manhattan District Attorney's Office. The Committee began from the general rule under DR 5-105(A) and (C) that, absent informed consent, a lawyer ordinarily may not represent a party adverse to a current client even in an unrelated matter, citing Cinema 5, Ltd. v. Cinerama on the heavy burden facing adverse representation of a continuing client.

The Committee nonetheless concluded the firm could undertake both engagements. Relying on its prior opinions (N.Y. City 1990-4 and 1996-4), it reasoned that where a governmental body is organized into different departments or agencies, each department or agency is treated as a distinct client for purposes of the rule against concurrent representation of one client against another. It noted this mirrors recent opinions treating separate private corporate entities as distinct clients, and drew support from Aerojet Properties, Inc. v. State of New York, where a firm was allowed to sue one state department while defending the State in other actions absent a substantial nexus, risk of disclosure of confidences, or appearance of impropriety.

Because the dual representations involved entirely separate state agencies, the Committee concluded the pro bono service as special counsel to the District Attorney's Office would not conflict with the firm's litigation against other state agencies. It stressed, however, that there is no per se permission: the lawyer undertaking the concurrent representation must still assure herself that the firm can adequately represent all clients' interests and that each client's confidences are protected.

Currency note

This opinion was issued in 1999, before New York replaced the Code of Professional Responsibility (the Disciplinary Rules cited here) with the New York Rules of Professional Conduct, effective April 1, 2009. The concurrent-conflict standard is now carried in New York Rule 1.7. 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 Treat this page as historical context, not current guidance.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 firm sue the State while also working for a part of the State?

A: On these facts, yes. The opinion concluded a firm may oppose New York State in litigation while a lawyer serves pro bono as special counsel to the Manhattan District Attorney's Office, because the matters involve separate state agencies treated as distinct clients.

Q: Why aren't the two state engagements treated as opposing the same client?

A: The opinion reasoned that where a government is organized into different departments or agencies, each is treated as a distinct client for conflict purposes, so opposing one agency while serving another is not representing a client against itself.

Q: Is the concurrent representation automatically permitted?

A: No. The opinion stressed there is no per se permission; the lawyer must still assure herself that the firm can adequately represent all clients' interests and that each client's confidences are protected.

Background and rules framework

The opinion interpreted New York's then-governing DR 5-105(A) and (C) (declining or continuing employment when interests conflict; multiple representation with informed consent, the analog of Model Rule 1.7), applied to government agencies as distinct clients (a concern related to Model Rule 1.13). The analysis turned on whether opposing one state agency while serving another is adverse representation of a single client.

Citations and references

Rules of Professional Conduct (then in effect):

• DR 5-105(A) (declining employment likely to involve differing interests; analog of Model Rule 1.7)
• DR 5-105(C) (multiple representation with informed consent)

Cases:

• Cinema 5, Ltd. v. Cinerama, Inc., 528 F.2d 1384 (2d Cir. 1976), adverse representation of a current client
• Aerojet Properties, Inc. v. State of New York, 138 A.D.2d 39 (3d Dep't 1988), opposing and representing the State concurrently

Other opinions cited:

• N.Y. City Bar Opinions 1990-4, 1996-4: agencies as distinct clients in pro bono programs

See also

• ISBA Ethics Op. 07-01: State Agencies as Separate Clients
• NYC Bar Op. 2004-03: Government Lawyer Conflicts Representing a Government Agency

Source

• Landing page: https://www.nycbar.org/reports/formal-opinion-1999-06-duty-of-loyalty/