Year 1990 Ethics Opinions
THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK
FORMAL OPINION 1990-4
COMMITTEE ON PROFESSIONAL AND JUDICIAL ETHICS
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May 22, 1990
ACTION: Formal Opinion
OPINION:
The New York City Commission on
Human Rights (the "Commission") is developing a pro
bono assistance program to help resolve pending unassigned cases
through mediation and adjudication. We have been asked to advise
on the ethical implications of certain aspects of the proposed
program.
The Commission is the
administrative agency charged with enforcement of the New York
City Human Rights Law, Administrative Code, Ch. 8. Complaints
filed by persons alleging violations of the Human Rights Law,
such as discrimination in employment, housing or public
accommodations, are investigated by the Commission's Law
Enforcement Bureau. When the investigation determines that
probable cause exists to credit the allegations of a complaint,
and when conciliation, if attempted, has failed, the matter is
referred to the Commission's Hearings Division for trial. See
Commission Rules of Practice, Rule 27.
The Commission wishes to use
volunteer lawyers in private practice to represent complainants
during proceedings before the Hearings Division. In addition, the
Commission proposes that volunteer lawyers serve as
administrative law judges (termed "Hearing Officers"
under the Commission's Rules of Practice) and as mediators.
Under the proposed program, a
volunteer lawyer would represent the complainant and a Bureau
staff lawyer would be assigned to ensure that the Commission's
interests are represented during the litigation; the Bureau staff
lawyer is not expected to play a major role in presenting the
case.
Volunteer mediators would serve at
the investigative stage before a determination of probable cause
is made. They would attempt to conciliate and settle matters
during this phase, see id., Rules 24-26, and would report on the
results of their efforts to a member of the Bureau staff or the
pro bono coordinator, but not to any administrative law judge.
Volunteer administrative law
judges would serve from time to time when assigned by the
Bureau's Hearings Division. They would oversee pretrial motion
and discovery practice and preside at hearings. After a hearing,
the volunteer administrative law judge would submit recommended
findings of fact and conclusions of law to the Commission, which
would then issue a final decision and order. See id., Rules
28-36.
It is expected that many of the
individuals who will be asked to serve as volunteer
administrative law judges (or their partners or associates) may
frequently represent parties in proceedings before the Hearings
Division. Similarly, many of the law firms and lawyers who are
expected to participate in the program as counsel to complainants
have represented, are now representing or may in the future
represent respondents in Commission proceedings, and many of such
volunteer lawyers and firms represent New York City or its
agencies or are engaged in litigation against the City or its
agencies.
The proposed volunteer assistance
program raises questions under the Code of Judicial Conduct
("Judicial Code") and under the provisions of the
Lawyer's Code of Professional Responsibility ("Lawyer's
Code") concerning the exercise of independent professional
judgment on behalf of a client (Canon 5) and the preservation of
client confidences and secrets (Canon 4).
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I.
We first address whether if a
lawyer acts as an administrative law judge or as a mediator for
the Commission, that lawyer or the lawyer's firm may also
represent respondents or complainants before the Commission.
1. Administrative Law Judges. A
preliminary issue is what ethical rules govern the conduct of an
administrative law judge. The Judicial Code applies to
"anyone . . . who is an officer of a judicial system
performing judicial functions." Compliance with the Code of
Judicial Conduct [Preamble]. This Committee and the New York
State Bar Association Committee on Professional Ethics have
interpreted this language broadly and have applied the Judicial
Code's provisions to a variety of quasi-judicial officials. See
N.Y. City 814 (1956) (tax commissioner); N.Y. State 365 (1974)
(part-time member of Administrative Appeals Board of the New York
State Motor Vehicle Department). n1
n1 The substance of the opinion
was that the partners and associates of the part-time
quasi-judicial officer are barred from representing clients
before the Motor Vehicle Department. Although specifically
concerned only with limitations on judges' political activities,
N.Y. State 327 (1974) applies the Judicial Code's restrictions to
"hearing officers for administrative agencies,
administrative law judges, trial examiners, workmen's
compensation referees, motor vehicle referees, and others holding
positions with similar functions."
Under the Judicial Code, the
answer to the question posed depends upon whether the volunteer
is treated as a "part-time" judge or a judge "pro
tempore". A part-time judge is defined as "a judge who
serves on a continuing or periodic basis, but is permitted by law
to devote time to some other profession;" a judge pro
tempore is defined as "a person who is appointed to act
temporarily as a judge". n2
n2 The definitions in the current
Judicial Code of part-time and pro tempore judges leave room for
uncertainty. The ABA Standing Committee on Ethics and
Professional Responsibility has proposed a successor Model Code
of Judicial Conduct ("Model Code") that would reduce
the ambiguity by defining more clearly the role of each.
Under the proposed Model Code, a
"periodic part-time judge" is "a judge who serves
or expects to serve repeatedly on a part-time basis but under a
separate appointment for each limited period of service or for
each matter." A "pro tempore part-time judge," on
the other hand, is "a judge who serves or expects to serve
once or only sporadically on a part-time basis under a separate
appointment for each period of service or for each case
heard." Model Code, Terminology at 6 (Final Draft, Nov.
1989).
Under the Model Code, the rules
regarding part-time and pro tempore judges would remain in
relevant part essentially unchanged, but the applicability of the
Model Code to administrative law judges would be determined by
each adopting jurisdiction. Model Code, Application PA.
The Judicial Code provides that a
part-time judge "should not practice law in the court in
which he serves." Compliance PA(2). Several ethics opinions
make it clear that DR 5-105(D), the vicarious disqualification
rule of the Lawyer's Code, extends this prohibition to the
partners and associates of a part-time judge. See, e.g., N.Y.
State 342 (1974) (partners and associates of part-time town
justice are disqualified whenever the justice himself would be
disqualified); N.Y. State 29 (1966) and 29(a) (1967) (associate
of justice of the peace's law firm may not appear before the
other justice of the peace); N.Y. State 65 (1967) (partners of
acting police court judge may not appear before regular judge of
police court). n3
n3 Indeed, according to N.Y. State
65(a) (1970), even lawyers who are merely sharing office space
with a part-time or acting judge are barred from practicing
before another judge of the same court.
Vicarious disqualification of
partners and associates cannot be avoided by screening them from
a directly disqualified lawyer through erection of a
"Chinese wall." See N.Y. State 603 (1989); compare DR
9-101(B) (screening may be effective to prevent vicarious
disqualification of partners and associates of a former
government lawyer). Therefore, if the volunteer administrative
law judge should be classified as a part-time judge, then the
lawyer, along with the lawyer's entire firm, will be disqualified
from representing clients before the Commission for as long as
the volunteer part-time judge serves.
On the other hand, if the
volunteer administrative law judge is treated as a judge pro
tempore, then he or she is barred from acting as a lawyer only in
proceedings in which he or she has served as a judge and in any
related proceedings. See Judicial Code, Compliance PB(2). Since
the lawyer serving as judge pro tempore is not barred from
practicing law in the court in which the lawyer serves
temporarily, neither would the lawyer's partners and associates
be barred, although they may not appear before that judge.
Finally, although legal questions
are beyond this Committee's jurisdiction, the volunteer
administrative law judges in question may be subject to the Rules
of the Chief Administrator of the Courts, which explicitly state:
No judge who is permitted to
practice law shall permit his or her partners or associates to
practice law in the court in which he or she is a judge. No judge
who is permitted to practice law shall permit the practice of law
in his or her court by the law partners or associates of another
judge of the same court who is permitted to practice law.
22 NYCRR 100.5(f). This broad
disqualification rule, which extends to judicial hearing officers
and to part-time judges, is reiterated in several opinions of the
Advisory Committee on Judicial Ethics of the Office of Court
Administration. See Opinions 88-156, 88-45 and 87-10.
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Whether, under the foregoing
principles and authorities, volunteer Commission administrative
law judges will be viewed, under the Judicial Code -- either as
presently in effect or as proposed to be amended in the Model
Code -- as part-time judges (whose partners and associates would
be disqualified) or judges pro tempore (who, and whose partners
and associates, would not be disqualified) will depend in large
part on how the Commission organizes its pro bono assistance
program. For example, if lawyers are asked to serve as volunteer
administrative law judges frequently and repeatedly, they are
more likely to be considered part-time judges, who (along with
their partners and associates) may be disqualified. If, on the
other hand, lawyers are asked to serve only occasionally and
sporadically, there should be no personal or vicarious
disqualification.
2. Mediators. The position of
lawyers serving as volunteer mediators raises a question of first
impression. Although the mediator's role is quite distinct from
that of the administrative law judge, we believe that, in order
to preserve the appearance of fairness and propriety, the same
rules should apply as for the volunteer administrative law
judges. The volunteer mediator will have a role as part of the
perceived institutional structure of the forum, albeit
temporarily, and volunteer mediators should be treated in the
same way as a judge pro tempore or as a part-time judge. If a
particular mediator is properly analogized to a part-time judge,
the person should not practice law in the court in which such
person serves. But if the particular mediator is more
appropriately treated as a judge pro tempore, the person is
barred from acting as a lawyer only in proceedings in which such
person served as a mediator and in related proceedings.
In determining whether a
particular mediator should be analogized to a part-time judge or
to a judge pro tempore, one would look not only to whether the
mediator serves on a continuing or periodic basis or on a
temporary basis but also to how the mediator functions within the
Commission's procedures. If a mediator merely meets with the
parties without any consultation with Commission staff and
reports the success or failure of the mediation effort to a
Commission representative, there is little if any reason to apply
the disabling principles that govern part-time judges. On the
other hand, if the mediator regularly consults with the
Commission's staff, and particularly if the mediator expresses
views on the merits in reporting on a failed mediation effort, it
seems more appropriate to apply the above rules governing
part-time judges.
II.
The second question we address is
whether a lawyer or law firm may represent complainants before
the Commission as part of the pro bono assistance program if the
lawyer or law firm is also representing respondents in
proceedings before the Commission.
This question raises the ethical
dilemma of issues conflict or positional conflict. There is no
per se rule that a firm that represents respondents before the
Commission may not represent complainants before the Commission.
However, the Lawyer's Code provides that a lawyer shall decline
proffered employment and shall not continue multiple employment
if the exercise of independent professional judgment on behalf of
a client will be or is likely to be adversely affected by the
lawyer's representation of another client, or if it would be
likely to involve the lawyer in representing "differing
interests." Differing interests are defined as "every
interest that will adversely affect either the judgment or the
loyalty of a lawyer to a client, whether it be a conflicting,
inconsistent, diverse or other interest." DR 5-105(A) and
(B), Definition (1).
The Comment to Rule 1.7 of the
Model Rules offers guidance on this issue:
A lawyer may represent parties
having antagonistic positions on a legal question that has arisen
in different cases, unless representation of either client would
be adversely affected. Thus, it is ordinarily not improper to
assert such positions in cases pending in different trial courts,
but it may be improper to do so in cases pending at the same time
in an appellate court.
See Philadelphia Bar Association,
Professional Guidance Committee, Opinion 89-27 (March 1990).
We believe the approach of the
American Law Institute's proposed Restatement, The Law Governing
Lawyers § 209, comment f (Tent. Draft No. 3, April 10, 1990),
gives more helpful guidance. According to the proposed
Restatement commentary, "a lawyer ordinarily may take
inconsistent legal positions in different courts at different
times where necessary to pursue the interests of different
clients." The proposed Restatement appropriately
distinguishes, in our view, between a representation with
"indirect precedential effect on another client's legal
position" (which presents no conflict) and arguing
"both sides of an unsettled point of law before the same
tribunal on behalf of different clients" (which presents a
conflict because "the argument in each case would inevitably
affect the other"). n4
n4 We note that the State Bar of
California Standing Committee on Professional Responsibility and
Conduct opined in Formal Opinion No. 1989-108 that it is not
unethical for a lawyer to represent two clients who are not
directly adverse to one another even where the lawyer will be
arguing opposite sides of the same legal question before the same
judge. We do not agree with this position, which does not require
a lawyer to exercise independent judgment in determining whether
an issues conflict is likely to prejudice one or both clients if
the two representations are continued. The California opinion
cautions, and here we agree with that Committee, that a
"prudent" lawyer with an arguable issues or positional
conflict should advise both clients of the other representation
(subject to confidentiality constraints) and allow each to seek
new counsel.
In all cases, each lawyer
proposing to represent a complainant in the pro bono program who
also represents respondents before the Commission ought to make
an independent determination of the likely effect of any
perceived conflict on the clients' interests and decline
representation or withdraw (unless both clients consent) whenever
the lawyer believes the concurrent representation would
materially and adversely affect either client or both. If the
lawyers in the pro bono assistance program are sensitive to these
considerations, there should be no difficulty as a general matter
if lawyers or law firms represent complainants before the
Commission on a volunteer basis even though such volunteers
represent respondents as paying clients in unrelated Commission
proceedings.
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III.
The third question is whether a
lawyer may represent complainants before the Commission or act as
an administrative law judge or mediator for the Commission if the
lawyer or the lawyer's firm represents the City or litigates
against the City.
We first consider whether a lawyer
may represent a complainant who has asserted a claim against the
City or a City agency when the lawyer or the lawyer's firm
concurrently represents the City or an agency thereof. n5 The
Lawyer's Code and judicial decisions bar simultaneous conflicting
representations (absent consent) because of the lawyer's duty of
undivided loyalty to each client. Successive representations in
substantially related matters are barred because of the risk that
the former client's confidences and secrets will be disclosed.
The ethical rules governing litigation against present or former
clients and their rationale are discussed in "Developments
in the Law -- Conflicts of Interest in the Legal
Profession," 94 Harv. L. Rev. 1244, 1292 (simultaneous
representation), 1315 (successive representation) (1981), and
N.Y. City 80-7.
n5 While the discussion in this
opinion focuses on simultaneous representation of adverse
interests in the context of litigation against the City or one of
its agencies, the same principles would apply to a lawyer who
represents a private party, such as a corporation, volunteering
to represent before the Commission a person who is asserting a
claim against that private client.
The lawyer's obligation of
undivided loyalty normally precludes suing a client, subject to
the two-pronged exception of DR 5-105(C). n6 A lawyer may not
simultaneously represent adverse interests because such
representations may impair the lawyer's independent exercise of
professional judgment on behalf of the clients or may result in a
diminution in the vigor of the lawyer's representation of the
clients. See Cinema 5, Ltd. v. Cinerama, Inc., 528 F.2d 1384 (2d
Cir. 1976).
n6 DR 5-105(C) permits the
representation of multiple clients if it is obvious that counsel
can adequately represent the interests of each and if each
consents after full disclosure of the possible effect of such
representation on the exercise of the lawyer's independent
professional judgment on behalf of each. See N.Y. City 80-7. We
note that the Delaware Chancellor recently wrote: "The rule
against simultaneous conflicting representations constitutes more
than a prohibition against suing current clients; it encompasses
any representation directly adverse to the interests of a current
client." Avacus Partners L.P. v. Brian, [Current] Fed. Sec.
L. Rep. (CCH) P94,920 (Del. Ch. Jan 23, 1990), reh'g denied, 1990
WL 27538 (March 9, 1990), appeal granted sub nom. In re Appeal of
Infotechnology Inc. Shareholder Litigation Disqualification of
Counsel, No. 113 (Del. Sup. Ct. May 9, 1990).
According to at least one bar
association ethics committee, the rule against simultaneous
adverse representation is so strict that it prohibits litigation
against a current client even with informed consent and even if
the litigation is wholly unrelated to the assignment for that
current client. See N.Y. County 671 (89-5) (N.Y.L.J., May 30,
1989). In the opinion of the New York County Lawyers' Association
Committee on Professional Ethics, although informed consent may
allow counsel to act in a non-litigated matter against the
interests of a current client, the need for zealous
representation and the need to avoid the appearance of
impropriety render inappropriate adverse representation in a
litigated matter. Our Committee, on the other hand, in Opinion
80-7 held that the exception provided in DR 5-105(C) (see page 9
n.5, supra) applies in the litigation context, and we adhere to
that view.
If the City is a litigant, it is
important to determine which agency of the City is involved.
Where a governmental body is organized into a number of different
departments or agencies, each department or agency should be
treated as a distinct person for purposes of the rule which
forbids the concurrent representation of one client against
another. N.Y. City 894 (Ethical Guidelines for Pro Bono Legal
Services to City) (1978); N.Y. State 447 (1976).
We conclude that the rule barring
a lawyer from suing an existing client would, except as provided
in the next paragraph, prevent a volunteer lawyer from
representing a complainant in a proceeding before the Commission
against the City or a City agency if the lawyer's firm at the
same time represents the City or that same agency on another
matter. Obviously, representation is barred if the lawyer's firm
is representing the City in the same matter. DR 5-105(A), (B); EC
5-15; EC 5-16.
We believe a lawyer or law firm
may simultaneously represent a complainant before the Commission
in a proceeding against a City agency while representing the
agency on another matter if (i) informed consent is obtained,
(ii) the matters are not substantially related, and (iii) no
other circumstances suggest the duty of loyalty owed by the
volunteer and the volunteer's firm to the complainant and to the
agency in the other matter would be compromised. n7 We caution,
however, that the informed consent test may be difficult to
satisfy when judged in hindsight by a complainant alleging
discrimination and, therefore, the Commission's pro bono
assistance program should endeavor to avoid such instances of
simultaneous adverse representation. In any event, even with
consent it must be obvious that the lawyer can adequately
represent the interests of both clients without impairment of the
ordinary and natural character of the lawyer's representation and
without adverse effect on the lawyer's capacity to exercise full
professional judgment on behalf of each client. N.Y. City 80-7.
n8 The requirement that it be "obvious" that the lawyer
can represent both parties adequately is a "very stringent
standard" and any doubt should be resolved against
concurrent adverse representation. Id.
n7 Although N.Y. City 894
permitted representing the City on a volunteer basis and
simultaneously representing private clients with differing
interests if, inter alia, there is consent and the matters are
not substantially related, that opinion's explication of the
substantial relationship test may have been too broad. We prefer
to rely on N.Y. City 80-7.
n8 Cf. Model Rule 1.7
(simultaneous representation is permitted only if the lawyer
reasonably believes it will not adversely affect the clients and
each client consents); see Restatement, The Law Governing Lawyers
§ 202(2)(c) (Tent. Draft No. 3, April 10, 1990).
After a lawyer-client relationship
has been terminated, on the other hand, a law firm may undertake
a representation adverse to a former client so long as the new
representation is not substantially related to the prior matter
and so long as there is not a substantial risk that confidences
of the former client will be put to hostile use. DR 5-105(C); EC
4-5; EC 4-6. n9 The volunteer lawyer would thus be barred from
representing a complainant only if there is a substantial
relationship between the litigation matter in question and a
matter in which the lawyer or the lawyer's firm previously
represented the City.
n9 See also Canon 9 ("A
lawyer should avoid even the appearance of impropriety") and
Model Rule 1.9 (lawsuits against former clients may not be
undertaken where there is a substantial relationship between the
current action and the prior representation unless the former
client consents).
If a lawyer or law firm is
representing a complainant as a pro bono volunteer in a
proceeding against the City and is at the same time suing the
City in another matter, we see no ethical problem.
If a pro bono administrative law
judge or the judge's law firm represents the City and the City is
a party in a proceeding before the Commission which the pro bono
administrative law judge is asked to adjudicate, the judge should
seek to be recused. Judicial Code, Canon 3(C). Similarly, if a
pro bono administrative law judge is sitting on a case in which
the City is a party and the judge or the judge's law firm is
litigating against the City, the judge should seek to be recused.
We believe these same principles should apply to mediators.
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