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ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK COMMITTEE ON PROFESSIONAL AND JUDICIAL ETHICS
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Year 1990 Ethics Opinions
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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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