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August 22, 2012

Past attorney-client relationship may constitute a conflict of interest with respect to representing another individual in a subsequent proceeding


Past attorney-client relationship may constitute a conflict of interest with respect to representing another individual in a subsequent proceeding
Robert Falk v Chittenden, 11 NY3d 73

In 2003, City of Rye initiated a disciplinary proceeding against a police lieutenant  pursuant to Civil Service Law §75 and the Department's Rules and Regulations alleging the lieutenant was insubordinate towards another police lieutenant. The accused lieutenant ultimately retained Jonathan Lovett, Esq. to represent him at the disciplinary hearing on these charges.

Falk asked the hearing officer to disqualify Lovett from representing the accused Lieutenant on the ground that he had an attorney-client relationship with him and thus had "a conflict of interest" in view of the attorney's consulting with Falk in the past.. 

Lovett, on behalf of the accused lieutnant, opposed Falk's motion. The hearing officer concluded that he did not have authority to decide the motion.

Ultimately the Court of Appeals considered the matter and ruled that, indeed, there was a conflict of interest in Lovett’s representing the Lieutenant because, in the words of the court, earlier "Falk sought Lovett's legal advice at least partly in a professional capacity. The record further establishes that conversations between Lovett and Falk touched on the disciplining [the Lieutenant]. Lovett acknowledges that he rendered some legal advice on that issue, advising Falk to be wary of [the accused Lieutenant’s] First Amendment rights.  "Moreover, while disciplining [the Lieutenant] might have been a personal desire of Falk's, a request for legal advice as to whether discipline against an inferior officer is a viable course of action falls squarely within a commanding officer's professional responsibilities. 

"Accordingly, Falk in his official capacity had an attorney-client relationship with Lovett, and therefore has standing as a prior client to bring this action for declaratory judgment."

The full text of the decision is set out on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/2008/07/past-attorney-client-relationship-may.html

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