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RICHMOND COUNTY BAR ASSOCIATION
COMMITTEE ON PROFESSIONAL ETHICS
OPINION # 25
May 3, 1999
The Committee is in receipt of an inquiry from an attorney who proposes to represent a private client in a visitation matter pending in the Family Court. The client is the subject of a recent suspected abuse and neglect report and is currently being investigated by the New York City Administration for Children s Services. The inquiring attorney was employed by that agency, prosecuting abuse and neglect cases. However, the attorney was out on authorized sick leave since September 29, 1998, and she formally resigned on April 12, 1999 retroactive to February 16, 1999.
Disciplinary Rule 5-108(A) provides that “a lawyer who has represented
the former client in a matter shall not thereafter represent
another person in the same or a substantially related matter
in which that person s interests are materially adverse to the
interests of the former client.” This section creates a “personal
and substantial participation” test applicable to the question
of disqualification. The drafters of this section intended to
limit the operation of DR 5-108(A) to instances in which the
lawyer either personally represented the former client or acquired
confidences or secrets (New York State Bar Association, Committee
on Professional Ethics, Op. # 638). The inquiring lawyer s actual
knowledge of the matter, and of any confidences or secrets is
the test (Id.). This is in line with the prevailing judicial
view on disqualification in this context (see, Silver Chrysler
Plymouth Inc. v Chrysler Motor Corp., 518 F.2d 751, 757;
Gas-A-Tron of Arizona v Union Oil Co. of California,
534 F.2d 1322, 1325). The NYSBA s Opinion # 638 makes it clear
that whatever knowledge the Administration for Children s Services
may have had on the case is not per se imputed to the lawyer
in the situation under consideration.
Equally applicable is DR 9-101(B)(2), on avoiding the appearance of impropriety, which provides:
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“A lawyer having information that the lawyer knows is confidential government information about a person, acquired when the lawyer was a public officer or employee, may not represent a private client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person.”
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This section also utilizes a “personal and substantial participation” test (NYSBA
Op. # 638, supra), and the use of the phrase “having
information” appears to incorporate the actual knowledge test
used in DR 5-108(A). Without such information, of course, nothing
can be used to the material disadvantage of the former client.
Here, inquiring attorney states that although on the payroll, she did no actual work for the Administration for Children s Services since September 29, 1998. Thus, she was not in a position to acquire actual knowledge about the case against her prospective client, nor to obtain any confidential information generated by report of alleged abuse, both of which are of recent origin. Thus, under the “personal and substantial participation” test, disqualification is not warranted.[1]
For these reasons, the Committee concludes that there is no basis or need for disqualification under the circumstances described herein.
Pursuant to Article VI Section 19 of the R.C.B.A. ByLaws, please be advised that the statements contained herein express the opinion of the Committee alone, and have not been passed upon the Association.
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Wayne M. Ozzi
Chairman, Professional
Ethics Committee |
[1]The Committee proceeds under the further assumption that the inquiring attorney obtained no confidences or secrets about the case against her potential client solely arising out of her employment at the Administration. This is a question for the lawyer to determine in the first instance (NYSBA Op. 638, supra.)
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