Can a town attorney who advises the town assessor in his official capacity later represent the town in a dispute against the assessor?
Apply this to your situation
This page answers the general question as of 1975. 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 was asked whether a town attorney who frequently represents the town assessor in the assessor's official capacity may represent the town in a proceeding seeking the assessor's removal, or in a proceeding the assessor brings against the town over a salary controversy.
The committee explained that a town attorney's duties include acting as legal advisor to all town officers in their official capacities, which is why this town attorney had so often represented the assessor as a public official. In subsequent litigation between the town and the assessor, the committee assumed that any confidential information the town attorney had obtained from the assessor as his legal advisor would not be relevant to the proceeding, because the representation involved only the assessor's official duties. On that assumption, the later adverse representation would not be inconsistent with DR 4-101, and the committee pointed to N.Y. State 303 (1973) for the criteria governing whether a lawyer may act against a former client.
The committee added that there would be no appearance of impropriety under Canon 9, because the prior representation was not of the assessor personally but only as required by law and in his official capacity (citing N.Y. State 326 (1974) and N.Y. State 364 (1974)). The committee was explicit about the limiting condition: if the contrary were true, that is, if the town attorney had obtained relevant confidential information, the representation should not be undertaken.
Currency note
This opinion was issued in 1975, before New York replaced the Code of Professional Responsibility with the Rules of Professional Conduct in 2009; the confidentiality duty it analyzes is now in Rule 1.6, duties to former clients in Rule 1.9, and the special rules for government lawyers in Rule 1.11. 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 Treat this page as historical context, not current guidance.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 town attorney represent the town against an official he previously advised?
A: Under this opinion, yes, where the prior representation was only of the official in his official capacity and no confidential information relevant to the new proceeding was obtained.
Q: What is the key fact the analysis turns on?
A: Per the opinion, whether the town attorney obtained confidential information from the assessor that is relevant to the proceeding by or against him. If he did, the representation should not be undertaken.
Q: Why was there no appearance of impropriety?
A: The committee reasoned that the earlier representation was of the assessor in his official capacity as required by law, not of the assessor personally, so opposing him for the town did not offend Canon 9.
Background and rules framework
The opinion applied DR 4-101 (preservation of a client's confidences and secrets) and Canon 9 (avoiding the appearance of impropriety), drawing on N.Y. State 303 (1973) for the standard governing representation adverse to a former client. The current New York analogues are Rule 1.6 (confidentiality), Rule 1.9 (duties to former clients), and Rule 1.11 (special conflicts for current and former government officers and employees).
Citations and references
Rules of Professional Conduct:
- MR 1.6 (confidentiality of information)
- MR 1.9 (duties to former clients)
- MR 1.11 (special conflicts for government lawyers)
- NY Canon 9; DR 4-101
Other opinions cited:
- N.Y. State 303 (1973): criteria for representation adverse to a former client
- N.Y. State 326 (1974); N.Y. State 364 (1974): representation of a public official in an official capacity
See also
- NY State Bar Op. 389: Former judge as advocate in the same matter
- NY State Bar Op. 392: State estate-tax attorney in Surrogate's Court
- NY State Bar Op. 387: Civic committee member representing a client opposing the county
Source
- Landing page: https://nysba.org/opinion-385/
Get today's answer for your situation
You just read a 1975 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.