ETHICS OPINION 647-1975 CONFLICTING INTEREST

NUMBER 647

QUESTION.

 

1. An attorney, until recently Associate Counsel to a quasi-govermental housing agency, is now engaged in general practice. He has been requested by a Tenants’ Association to oppose a landlord’s application to the agency for an increase in rent, based on hardship. His former services for the agency involved consideration and recommendations with respect to complaints by tenants, and did not relate to applications by landlords, which were filed in another department of the agency. The attorney states that although the landlord’s application was filed while he was employed by the agency, he had no access to it and did not know of its pendency until after his employment by the agency had terminated. The attorney asks if he may properly represent the Tenants’ Association in resisting the application for a rent increase?

 

2. The Law Secretary of a Criminal Court Judge contemplates retiring from his position to engage in private practice in which he would handle both criminal and civil matters. The Court is composed of a number of complexes, each of which has an Assignment Part and several Trial Parts. The Judge sits in one of the Assignment Parts, but also passes upon questions relating to bail, pre-trial motions, pleas of guilty, and sentencing. Occasionally he accepts a non-jury trial. The Trial Judges in other complexes at times solicit: the Law Secretary’s advice on various fact situations, without mentioning names.

 

The Law Secretary asks if it would be permissible for him to represent individuals who had appeared in the same complex in which he had served as Law Secretary, but only on new unrelated matters, and also if he could represent defendants in other complexes of the same Court whose cases he recognized from the fact situation?

 

ANSWER.

 

Both questions must be considered in the light of DA 9-101(B) which provides that “A lawyer shall not accept private employment in a matter in which he had substantial responsibility while he was a public employee’’, See EC 9-3.

 

While the Committee does not pass on questions of law, it calls attention to Public Officer’s Law, Sec, 73, Subd, 7 and New York City Administrative Code, Chapter 49, Sec, 1106-3.0.

 

In the opinion of the Committee there is no ethical impediment to the representation of the tenant’s group by the lawyer who asks the first question. N.Y. State 303 (1962). The question makes it clear that the attorney, when he was employed by the multi-faceted agency, had no connection, directly or indirectly with the matter involved in the proposed proceeding, and that he had not obtained any confidential information relevant thereto. This distinguishes the situation from that considered in N.Y. County 522 (1964), where it was held to be improper for a former general counsel to a cooperative housing corporation to represent a tenant-stockholder in a proceeding challenging a house rule which was adopted while he represented the corporation. See also N.Y. County 506 (1962).

 

The second question presents more difficulty. The Committee has concluded that the lawyer raising the question should not undertake the case of any defendant if he had previously, while occupying his official position, discussed that case with any judge. DR 9-101(B); EC 9-6; Can. 9; N.Y. City 548 (1940). He may, however, represent individuals, either in the same complex of the Court in which he had served as Law Secretary to one of the judges, or in other parts of that Court, even though he recognizes their identity from the fact situation, provided he had not discussed their cases and the matters are new and completely unrelated to the previous offense which the attorney recognized. N.Y. City 548 (1940); N.Y. State 52 (1967).

 

June 20, 1975