New York State Bar Association Ethics Opinions
Free plain-English summaries of legal ethics opinions issued by the New York State Bar Association, with full citations and source links on every page.
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When a private lawyer is elected district attorney, can the new DA prosecute someone the lawyer's former firm represents, and is the whole office disqualified?
The opinion concluded that the new DA may prosecute a former-firm client where the lawyer did not participate personally and substantially and learned no relevant confidences; if the DA is disqualifie…
Can a lawyer represent a client suing the lawyer's old firm for malpractice, and must the lawyer report the old firm's conduct to disciplinary authorities?
The opinion concluded that the lawyer may not assist the client against the former firm if the lawyer's own interests would substantially impair his judgment or he ought to testify, and that reporting…
Can a lawyer who was a city's part-time general counsel later represent a different government agency in a matter he handled, and can his firm?
The opinion concluded that the lawyer himself may not represent another government agency in a matter in which he participated personally and substantially for the city, but his firm may if he is scre…
Can a part-time town judge represent private clients before the same town's zoning or planning board, and can the judge's law partners?
The opinion concluded that a part-time judge may not appear before the zoning board of appeals or planning board of the same municipality, but partners and associates are not automatically disqualifie…
Can a lawyer who is also an agent for a title insurance company represent a public agency and place the agency's title insurance with that company?
The opinion concluded that the lawyer may do so if both the agency and the title company consent after full disclosure, the agency is credited the fees the lawyer receives from the title company, no a…
Can an outside lawyer retained as a town's special counsel also represent private clients before the town's planning board or zoning board of appeals?
The opinion concluded that, absent actually differing interests, special counsel retained for a particular matter may represent private clients before the town's planning board or zoning board of appe…
Can a governmental entity consent to waive a lawyer's conflict of interest in New York, or must the lawyer always decline when a government client is involved?
The opinion abandoned New York's 'government cannot consent' rule and concluded that a governmental entity may consent to a conflict if the consent meets DR 5-105(C), the entity is legally authorized …
Can a lawyer sue a former client when the new matter is unrelated, and does the recency of the prior representation matter?
The opinion concluded that a lawyer may represent a plaintiff against a former client unless the matters are substantially related or the lawyer holds relevant confidences; the duty of loyalty ends wh…
If a borrower pays the lender's lawyer, must the lawyer tell the borrower he is also being paid by the title insurer, and can he keep both fees?
The opinion concluded that the lender's lawyer must disclose to the borrower, who pays the fee, that the lawyer is also compensated by the title insurer at closing and how much, and may retain both fe…
Can a New York lawyer refer a real estate client to a title abstract company the lawyer owns and collect a share of the title premium?
The opinion concluded that it is improper, per se, for a lawyer to refer a real estate client to an abstract company in which the lawyer has an ownership interest, because the personal-interest confli…
Can an estate-planning lawyer sell life insurance to the same clients through a separate business the lawyer has a financial stake in?
The opinion concluded that a lawyer doing estate planning may not recommend or sell life insurance products to his estate-planning clients when the lawyer has a substantial financial interest in the s…
Can a lawyer work as a part-time assistant district attorney in one county while serving as a full-time police officer in another?
The opinion concluded that a lawyer may not ethically combine the roles of prosecutor and police officer, because of the harm to public confidence in law enforcement and the substantial, unavoidable r…
If a lawyer is also a police officer and cannot do criminal defense work, can the other lawyers in the lawyer's firm take criminal cases?
The opinion concluded that because a lawyer who is a police officer may not represent criminal defendants, the other lawyers in his firm are likewise barred, and DR 5-105(D) provides no screening exce…
Can a New York lawyer represent both the seller and the mortgage lender in the same real estate transaction with the consent of both?
The opinion concluded that a lawyer may represent both the seller and the lender only after weighing the specific facts and concluding it is not likely their interests will differ, and only with full …
Can a New York lawyer draft a client's will that names the lawyer as both a co-executor and a residuary beneficiary?
The opinion concluded that, absent unusual circumstances such as a close family relationship or a small bequest, a lawyer should not draft a will naming the lawyer as both executor and beneficiary, be…
Can an assistant district attorney sell media rights to her role in a prosecution, and help develop her character in a screenplay?
The opinion concluded that an assistant district attorney may sell media rights to her role and help develop her character once the prosecution is complete, but may not negotiate or enter such an agre…
Can a small public defender's office represent a defendant when a prosecution witness is a former client of the office, and can consent or office size change the answer?
The opinion concluded that the office is disqualified unless the prior matter is unrelated and no relevant confidences were obtained; informed consent of each client can cure the conflict; and absent …
Can a part-time assistant city attorney, or other lawyers in that attorney's private firm, represent private clients before city agencies?
The opinion concluded that a part-time assistant city attorney, and the attorney's whole firm, may not represent private clients before any city agency the attorney's office is associated with, but ma…
If a lawyer in a firm is subpoenaed to testify against a judge in a Commission on Judicial Conduct proceeding, can the firm's other lawyers keep appearing before that judge?
The opinion concluded that the firm's lawyers may not appear before the judge absent the judge's disclosure and a valid remittal, that the judge has the primary duty to recuse whether or not the testi…
Can a lawyer representing a group of tenants against a landlord accept a bonus or premium from the landlord as part of settling the dispute?
The opinion concluded that a lawyer may not accept a bonus or premium from the adverse party in a settlement where the amount exceeds the reasonable fee the lawyer could expect from the client, becaus…
Can a lawyer let a bank extend immediate credit to one client based on a multiple-client escrow account, or based solely on the lawyer's own creditworthiness on a single closing?
The opinion concluded that a lawyer may not back a client's credit with a multiple-client escrow account, because that uses other clients' funds and is an impermissible conversion, but may let a bank …
When the same insurer covers both the plaintiff and the defendant, can the defense lawyer use the plaintiff's insurance file that the carrier forwards to use against the plaintiff?
The opinion concluded that defense counsel hired by the carrier may not use the plaintiff's insurance file obtained from the carrier to circumvent the rules of discovery, because doing so is unfair ba…
Can a law firm form and co-own a title abstract company with one of its real estate clients, and then refer its clients to that company for title work?
The opinion concluded that a firm may form and be a principal in a title abstract company with a client subject to solicitation, fee-sharing, and business-transaction safeguards, and may refer clients…
May a town or village justice use a confidential law clerk appointed and paid by the county, and is there a conflict when the district attorney appears before the justice?
The opinion concluded that a justice may use a county-appointed law clerk where the clerk is 'court personnel' subject to the justice's sole direction and control, or qualifies as a disinterested expe…
When a public defender represents two unrelated defendants and one tells the lawyer the other confessed, must the lawyer withdraw, is the whole office disqualified, and can the lawyer explain why?
The opinion concluded that the lawyer must withdraw from representing both clients, the entire public defender's office is likewise disqualified from representing either, and the lawyer may not reveal…
Can a lawyer serve on a bar lawyer referral service committee and still receive referrals from that service?
The opinion concluded that a committee member may receive referrals where the committee sets only broad policy and the staff assigns referrals to an open panel on a rotating basis, because the member …
Can a lawyer who represents a corporation or other organization also serve on its board of directors, or as board chair?
The opinion concluded that board service by an organization's lawyer is not per se improper, provided the lawyer does not use the seat as a feeder for legal work, discloses the risks (including loss o…
Can a lawyer employed by a county Department of Social Services bid to buy real property the department is selling at public sale?
The opinion concluded that the lawyer may not bid, because the lawyer and the public-body client have differing interests in the sale, the public body cannot consent to the conflict, and the lawyer ha…
When may a part-time public defender in New York accept a criminal defendant as a private paying client?
The opinion concluded that a part-time public defender may privately represent a defendant who sought the lawyer out for private representation, even if the defendant also explores appointed counsel, …
Can a New York lawyer prepare surrogate parenting contracts and represent both a surrogate mother and the intermediary who arranges the match?
The opinion concluded that a lawyer may prepare a surrogate parenting contract and provide related non-legal consulting only if the lawyer determines the conduct is not illegal, but may not represent …
Can a New York assistant district attorney rent office space from, or go into business with the spouse of, a defense lawyer who practices in the same county?
The opinion concluded that there is no per se bar; an assistant district attorney may rent non-law office space from an assistant public defender and may employ, or take investment from, the spouse of…
Can a law firm that serves as bond counsel to a municipality also represent private clients in matters against that same municipality?
The opinion concluded that a firm serving as bond counsel to a municipality may not simultaneously represent private clients against that municipality (before its zoning board, in tax certiorari, or i…
Can a lawyer who is opposing counsel to another lawyer in a pending case also personally represent that opposing lawyer in an unrelated matter?
The opinion concluded that this is not per se improper: a lawyer may personally represent opposing counsel in an unrelated matter only if both lawyers are satisfied it will not compromise their existi…
Can a state-employed lawyer belong to a union with non-lawyer members, and can a lawyer-union-member prosecute disciplinary cases against other state employees in the same union?
The opinion concluded that a state-employed lawyer may belong to a union that includes non-lawyers so long as no Disciplinary Rule is violated, but a lawyer who is a union member may not represent the…
Can a lawyer who represents a party in a real estate deal also act as agent for the title insurer and keep part of the title insurance premium?
The opinion concluded that a real estate lawyer may also act as title-insurance agent and share in the premium only if the arrangement is legal, no prohibited conflict exists, all parties consent afte…
Must a New York judge recuse when a party is represented by a lawyer who once represented the judge?
The opinion concluded that there is no per se rule; whether the judge must recuse turns on whether the judge's impartiality might reasonably be questioned under Code of Judicial Conduct Canon 3C(1), w…
Can a New York lawyer who is attorney for the town's zoning and planning boards also serve as a town justice?
The opinion concluded that an attorney serving by town-board appointment as counsel to the zoning board of appeals and the planning board may not also serve as a town justice, because litigants could …
Is a special district attorney appointed for one case subject to the same restrictions on private criminal defense work as a regular part-time prosecutor?
The opinion concluded that a special district attorney appointed under County Law section 701 is sui generis, not a part-time prosecutor, so the per se limits on private criminal practice do not apply…
Can a New York law partner sell part of his partnership interest, including a share of future fees, to an incoming partner?
The opinion concluded that a lawyer may not sell an interest in an ongoing law practice itself; selling tangible assets is permissible, but transferring the right to represent the firm's clients for a…
Can one lawyer keep defending two co-defendants in a malpractice case when one of them refuses consent to the joint representation?
The opinion concluded that where one co-defendant may have a cross-claim against the other, the lawyer may not represent both without each client's informed consent; if a client has specifically asked…
When a lawyer jointly represents two partners and one tells the lawyer something in confidence, can the lawyer reveal it to the other partner?
The opinion concluded that, absent express or implied consent, a lawyer jointly representing two clients may not disclose to one a confidential communication from the other relating to the representat…
Can a lawyer lend a matrimonial client money to bid on the marital home being sold under an equitable distribution decree?
The opinion concluded that a lawyer may not lend or guarantee a loan to a client to let the client bid on marital property being sold under an equitable distribution decree; such a loan is prohibited …
Can an 18-B assigned lawyer represent the same indigent client in unrelated paying matters during or after the assignment?
The opinion concluded that an 18-B assigned lawyer may represent the former client for a fee on unrelated new matters after the assignment ends (first checking continued 18-B eligibility), but may not…
Can a lawyer take a mortgage, or a deed, on the client's property to secure payment of the lawyer's fee?
The opinion concluded that a lawyer may take a mortgage to secure a fee, subject to conditions (a proper fee, no quantum meruit basis for future fees, no undue pressure, restraint on foreclosure, and …
Can a lawyer who is a principal of a collection agency accept client referrals from it and refer clients to it?
The opinion concluded that, assuming no violation of the law against solicitation and full disclosure to the clients of the lawyer's relationship to the collection agency, a lawyer who is a principal …
Is a judge disqualified when a lawyer appearing before the judge is married to the judge's confidential law clerk?
The opinion concluded that neither the judge nor the practitioner-spouse is disqualified per se, so long as the law-clerk spouse is screened from the case; the law-clerk spouse, however, must disclose…
Can a part-time local government attorney who prosecutes ordinance violations also defend criminal cases privately?
The opinion concluded that a part-time local attorney may take private criminal defense work only if the conduct he prosecutes for the locality includes no Penal Law or other state-statute offenses an…
Can a lawyer who serves as a tax-assessment hearing officer, or others in his firm, represent private clients in those same proceedings?
The opinion concluded that a lawyer serving as a small-claims real property tax assessment hearing officer, and the lawyers in his firm, may not represent private clients in tax-assessment matters in …
Can a judge hear cases involving a law firm the judge is negotiating with for future employment?
The opinion concluded that a judge may not hear matters in which a law firm the judge is negotiating with for private employment appears, and even after the judge declines a firm, the prior negotiatio…
Can lawyers run a financial planning company from their law office and take its customers as legal clients?
The opinion concluded that members of a law firm may operate a financial planning corporation from their law office and accept its customers as legal clients, provided the corporation is not used to s…
After leaving a Legal Aid Society, can a lawyer represent the same indigent clients for a fee in private practice?
The opinion concluded that a former Legal Aid staff attorney may represent prior clients privately, but not for a fee on the same matters they handled at the Society while those clients still qualify …
Can a public defender's office handle an appeal arguing that its own former lawyer gave ineffective assistance at trial?
The opinion concluded that no, where an appeal must attack the competence of trial counsel from the same public defender's office, the office is disqualified, and the fact that several lawyers work th…
Can a lawyer who serves as escrow agent keep the interest earned on the escrowed funds as payment for handling the escrow?
The opinion concluded that a lawyer acting as escrow agent may not accept or seek the interest earned on escrowed funds as compensation; the committee found such an arrangement per se improper given t…
Can the same lawyer serve at once as a part-time assistant district attorney and a probation officer in the same county?
The opinion concluded that no, the prosecutor's role is fundamentally incompatible with the probation officer's role, so one lawyer may not hold both positions in the same jurisdiction; disqualificati…
If someone confesses a crime while trying in good faith to hire a lawyer who already represents an adverse client, what must the lawyer do?
The opinion concluded that the lawyer may not disclose or use the would-be client's confession, must decline that person's retainer, and must withdraw from representing the existing client on that mat…
Can an insurance company's salaried staff lawyer defend an insured the company is denying coverage to?
The opinion concluded that once the carrier persists in disclaiming coverage, its staff lawyer may not defend the insured or handle a coverage declaratory-judgment action, because the conflict is so s…
Can a part-time county public defender sue the county that employs him on behalf of private clients?
The opinion concluded that a part-time county public defender may represent private clients in civil litigation against the county, because his clients are indigent defendants rather than the county, …
Can one lawyer represent a wife in her divorce and also represent, in a separate matrimonial case, the husband of the woman she names as the other party?
The opinion concluded that a lawyer may not simultaneously represent the wife in a divorce and the co-respondent's husband in a separate matrimonial proceeding, because their interests differ in too m…
Can a lawyer employed by a life insurance company to prepare estate plans also draft the customer's will?
The opinion concluded that a lawyer employed full time by a life insurance company to prepare estate plans for its customers may not also draft and supervise a customer's will, because the dual role c…
Can a lawyer who served as guardian ad litem in a conservatorship proceeding then be hired as counsel to the conservator?
The opinion concluded that a lawyer who served as guardian ad litem in a conservatorship proceeding may not, shortly afterward, accept employment as counsel to the conservator, because the prospect of…
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Legal ethics opinions from the New York State Bar Association interpret the rules of professional conduct for working lawyers, in response to inquiries from members and committees. They are not binding like court discipline decisions, but courts and discipline boards treat formal opinions as substantial guidance on how the rules apply. Every opinion above has a plain-English question and short answer, plus a link to the original source on the bar's site.