Opinion No. 1994-4

(Inquiry No. )

Topics: Propriety of member of county bar association grievance committee representing a client in a post-matrimonial dispute subsequent to having investigated the client’s prior lawyer.
Digest: Having, on behalf of a county bar association grievance committee operating as an adjunct of the departmental grievance committee, investigated a complaint against a former attorney, inquiring counsel is prohibited from thereafter representing the former complainant in an action related to the one regarding which the complaint was filed. Whether the action is “related” cannot — on the facts presented to this Committee — be determined in this instance.
Code Provisions: DR 7-103
DR 9-101(B)(1)
EC 7-13
Facts Presented: Inquiring counsel is a member of a local county bar association grievance committee, located within the Second Judicial Department. More than three years ago, inquiring counsel, in his capacity as a county bar association grievance committee member, was assigned to investigate a complaint which had been filed by a female client against the client’s former matrimonial attorney. Inquiring counsel investigated the complaint and ultimately recommended that the matter be referred back to the departmental grievance committee.

Several weeks ago, inquiring counsel received a telephone call from the complainant in the grievance matter, who requested that inquiring counsel represent the client in what is now a post- matrimonial action against her former husband. The complainant’s former attorney– against whom the grievance had been lodged — is not involved in this new proceeding. The former spouse of the prospective client and the former spouse’s attorney were not involved with the grievance matter.
Inquiry: Can inquiring counsel represent a client in a civil matter after having, as a member of the county bar association grievance committee, investigated a complaint lodged by the prospective client against the prospective client’s former attorney?
Determination: If the actions are related — something which this Committee has insufficient information to determine — no, unless expressly permitted by law.
Analysis: In Nassau County Opinion #93-35, this Committee determined that the inquiring counsel in that instance could not represent the plaintiff in a civil suit after having prosecuted the defendant criminally as an assistant district attorney with the current plaintiff acting as complaining witness. This Committee based its decision upon DR 9-101(B)(1), which prohibits an attorney who has served as a public officer or employee from thereafter representing a private client in connection with a matter in which the lawyer participated personally and substantially. See also, N.Y. State Opinion #506 (1979) (determining that an assistant county attorney who in his official capacity represented a wife in proceedings brought against her former husband under the uniform support of Dependents Law could not thereafter represent the wife privately in an action, also directed against her former husband, to recover arrearages due under a separation agreement).

The two issues which must be addressed by this Committee in responding to the instant inquiry are (i) whether inquiring counsel’s service as the investigating attorney for the county bar association grievance committee constituted service “as a public officer or employee” for purposes of this disciplinary rule; and (ii) whether the post-matrimonial action is sufficiently related to the grievance investigation conducted by inquiring counsel so as to constitute a “matter in which the lawyer participated personally and substantially” for purposes of this rule.

As observed by this Committee in Nassau County Opinion #93-35, the New York State Bar Association Committee on Professional Ethics in N.Y. State Opinion #506 (1979) elucidated the primary policy rationale behind DR 9-101(B)(1)’s prohibition:

“The ethical proscription we note traces its origin, at least in part, to a concern that the proscribed conduct would engender suspicion that the official had somehow improperly used his position to assure himself of future employment upon his return to private practice.

“We . . . consider immaterial the fact that the objectives of the assistant county attorney’s contemplated private employment would be fully consistent with those of his prior representation of the wife in proceedings brought under the Uniform Support of Dependant’s Law. The apparent impropriety which DR 9-101(B) addresses is not that of undertaking to represent conflicting interests, but that of using a public office to secure some private advantage. See F. N.Y. State 502 (1979) with N.Y. State 453 (1976). Hence, the ethical proscription exists whether or not the proffered employment is consistent with the lawyer’s objectives when engaged in the performance of his public office.”

In Nassau County Opinion #93-35, this Committee additionally identified a secondary policy rationale for the prohibition. Because DR 7-103 and EC 7-13 enjoin public prosecutors “to seek justice not merely to convict,” this Committee determined that:

“[Tlhere is an inevitable conflict between a prosecutor’s duty to “seek justice” even at the possible expense of a conviction and a private advocate’s duty to advance his client’s interests, as where a conviction could bolster the value of a victim’s lawsuit against the criminal defendant.”

Thus, this Committee concluded:

“If the vigor and zeal which an attorney serving as a public officer or employee (and particularly as a prosecutor) brought to the matters under his official jurisdiction were influenced, whether consciously or unconsciously, by the anticipation of possible material gain as counsel in a subsequent civil action, the attorney’s official functioning could be compromised. The rigid prohibition of DR 9-101(B)(1) insulates the attorney/public officer or employee against even the possibility of a conflict between his current official role and a potential subsequent private one.”

In the opinion of this Committee, these same concerns are present in the instant situation.

The Third Department has specifically provided by court rule for the investigation of certain “minor matters” by county bar associations upon reference from the chief attorney of the committee on professional standards. 22 N.Y.C.R.R. § 806-6. While not dealt with by specific court rule, one or more of the grievance committees in the Second Department have historically also followed this procedure. Upon reference, the investigation is conducted by the county bar association grievance committee, which is authorized to dismiss the complaint (see, 22 N.Y.C.R.R. S § 691.4[e](1)) or to refer the case back to the departmental grievance committee with a recommendation for the issuance of a letter of caution (22 N.Y.C.R.R. 7#167; 691.4(e](21), an admonishment (22 N.Y.C.R.R. § 691.4[e][3]), or the institution of formal charges (22 N.Y.C.R.R. § 691.4[e][4]). Individual members of the county bar association grievance committees are charged with investigating the complaint and filing a written report together with findings, conclusions and recommendations.

The county bar association grievance committee effectively acts as an adjunct of the departmental grievance committee. A member of the county bar association grievance committee, when engaged in an investigatory function, is for these purposes acting as a “public officer” to the same extent as would a member of the departmental grievance committee’s counsel’s staff . To permit representation such as is proposed here could “engender suspicion” that an investigating attorney’s vigor and zeal were influenced by the hopes of currying favor with a complainant in order to secure the complainant’s future business. The integrity of the investigatory process could thus be compromised.

In N.Y. State Opinion #506 (1979), it was determined that an action by a wife against her former husband under the Uniform Support of Dependents Law was sufficiently related to a private action subsequently commenced by the wife to recover arrearages from her husband under a separation agreement to constitute a “matter” within the contemplation of DR 9-101(B)(1). The instant situation, however, unlike those presented in N.Y. State Opinion #506 and Nassau County Opinion #93-35, would not involve the attorney in representing the client against anyone who was a direct defendant, or a target of the attorneys public responsibilities. Whether the wife’s post-matrimonial action against her husband satisfies what the State Bar referred to in N.Y. State opinion #506 as “the definitional touchstone” for a “matter” within the scope of the rule, where the subject of the grievance was the handling by the prior attorney of the underlying matrimonial action, is an issue requiring scrutiny of facts beyond the scope of those stated in the inquiry, potentially including the nature of the grievance, the scope of the investigation conducted, the issues presented in the post-matrimonial proceeding vis-a-vis the original matrimonial action, et al.

[Approved by the Executive Subcommittee on 1/18/94; approved by the Full Committee on 1/26/94]