Can an 18-B assigned lawyer represent the same indigent client in unrelated paying matters during or after the assignment?

Plain-English summary

A private attorney assigned to represent an indigent client under Article 18-B of the County Law asked whether he could also represent that client in unrelated fee-generating matters, both after the 18-B assignment concluded and while it was continuing. The committee reviewed its prior opinions on part-time public defenders and former legal aid lawyers, which turned on Canon 9's appearance-of-impropriety concern and the caveat (from ABA Informal Opinion 1112) that the public role must not be used "as a feeder to enhance" a private law practice.

On the first question, the committee drew on N.Y. State 534 (1981) to conclude that an attorney who has completed an 18-B assignment may later represent the former client for a fee on unrelated new matters that arose or came to the lawyer's attention after the assignment ended. As with a former legal aid lawyer, the attorney should first determine whether the client remains eligible for continued 18-B assistance and, if so, advise the client of the entitlement to free representation; services on matters related to the 18-B assignment must be rendered without charge.

On the second question, the committee analyzed the nature of 18-B assignments, noting that Article 18-B provides only modest compensation and was not meant to eliminate the pro bono character of representing indigent defendants, and that the Code repeatedly stresses the lawyer's aspirational duty to serve the disadvantaged (EC 2-25). It balanced the interest in encouraging pro bono service against the bar on using the assignment as a feeder and the statutory rule that assigned counsel may not seek or accept fees for the assigned representation without court approval, and against the client's right to counsel of choice. It concluded that an 18-B attorney may not, during an ongoing assignment, represent the assigned client in an unrelated matter for an uncontingent fee. It saw no need for that proscription where no fee is charged, or where the fee is contingent (payable only from the proceeds); in the contingent case the client must be told at the outset that the representation will be reported to and subject to the approval of the assigning court, and warned that the outcome may bear on continued 18-B eligibility. With court approval, an unrelated contingent-fee representation may be undertaken. The first question was answered in the affirmative and the second in the negative, except for court-approved contingent-fee representations.

Currency note

This opinion was issued in 1983, before New York replaced the Code of Professional Responsibility with the Rules of Professional Conduct in 2009 (accepting court appointments is addressed at Rule 6.2, conflicts at Rule 1.7, and fees at Rule 1.5). 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 an 18-B lawyer take paid unrelated work for the client after the assignment ends?

A: Yes. The committee held the lawyer may represent the former client for a fee on unrelated new matters, after first checking continued 18-B eligibility and advising the client of any entitlement to free representation.

Q: Can the lawyer take an unrelated flat-fee matter while the 18-B assignment is ongoing?

A: No. The committee held a lawyer may not represent the assigned client in an unrelated matter for an uncontingent fee while the assignment continues.

Q: Is there any way to take an unrelated paid matter during the assignment?

A: Yes, a contingent-fee or no-fee matter. The committee allowed it only with court approval and after telling the client it will be reported to the assigning court and may affect 18-B eligibility.

Background and rules framework

The opinion applied the appearance-of-impropriety principle of Canon 9 and the pro bono and solicitation provisions (EC 2-16, 2-25, 2-29; DR 2-103(D); DR 2-104(C); DR 2-106(D)) to assignments under County Law Article 18-B. The closest current Model Rule analogues are Rule 6.2 (accepting appointments), Rule 1.7 (conflicts), and Rule 1.5 (fees).

Citations and references

Rules of Professional Conduct:

• MR 6.2 (accepting appointments)
• MR 1.7 (conflict of interest: current clients)
• MR 1.5 (fees)
• NY DR 2-103(D); DR 2-104(C); DR 2-106(D); EC 2-25

Statutes:

• County Law Article 18-B; sections 722, 722-b, 722-d (assigned counsel; compensation; termination)

Cases:

• Werfel v. Agresta, 36 N.Y.2d 624 (1975), assigned counsel as public service
• People v. Gomberg, 38 N.Y.2d 307 (1975), right to counsel of choice

Other opinions cited:

• N.Y. State 534 (1981): former legal aid lawyer representing a prior client for a fee
• N.Y. State 165 (1970); N.Y. State 173 (1970): part-time public defender and private clients
• ABA Inf. 1112 (1969): public office not to be a feeder for private practice

See also

• NY State Bar Op. 564: Special district attorney and private criminal practice
• NY State Bar Op. 553: Lending a client money to bid on marital property
• NY State Bar Op. 567: Retaining lien and fee-dispute litigation

Source

• Landing page: https://nysba.org/opinion-551/