Formal Opinion 2025-1: Ethical Responsibilities of Lawyers Representing Government Officers and Agencies

SUMMARY

The Professional Ethics Committee issued Formal Opinion 2025-1, “The Ethical Responsibilities of Lawyers Who Advise, Represent, or Act on Behalf of Government Officers and Agencies.” The opinion addresses the question, “Must a government lawyer conform to the Rules even if doing so would require the lawyer to disobey the direction of a more senior government official?” It concludes that “[a]ll [New York] lawyers, including government lawyers, must abide by the Rules [of Professional Conduct] when representing clients. The duties lawyers owe to the governmental entity they represent are the same as those owed to any other client. Under the Rules, lawyers owe their clients loyal, competent, diligent, and honest representation. However, a lawyer is always also an officer of the legal system and, in litigated matters, of the court directly. No obligation to a client—including one that happens to be a governmental entity—justifies a lawyer in violating the Rules. For that reason, a lawyer’s discretion to disobey a superior’s directives that would result in violations of the Rules may never be abridged, even if that superior accurately conveys the desires of the client governmental entity. It is especially true that a lawyer may not violate those Rules requiring candor and fair advocacy in the conduct of litigation in deference to the demands of a client, even if the client’s authorized representative is a high-ranking government official or one of its officers or agencies.”

REPORT

NEW YORK CITY BAR ASSOCIATION COMMITTEE ON PROFESSIONAL ETHICS

FORMAL OPINION 2025-1: THE ETHICAL RESPONSIBILITIES OF LAWYERS WHO ADVISE, REPRESENT, OR ACT ON BEHALF OF GOVERNMENT OFFICERS AND AGENCIES

TOPIC: The duties and ethical responsibilities of lawyers when advising, representing, or acting on behalf of government officers and agencies

DIGEST: A lawyer representing a government officer or agency, such as the U.S. Department of Justice (“DOJ”) or other federal, state or local executive, may not violate the New York Rules of Professional Conduct (the “Rules”) and may refuse orders from superiors that could, in the lawyer’s independent judgment, result in such a violation. This Opinion clarifies that a government lawyer who carries out a directive of a senior official, regardless of who that official is, that would violate the Rules may be professionally disciplined for doing so.

RULES: Preamble [1], [3]; Rules 1.0(h), 1.1; 1.2; 1.3; 1.4; 1.6; 1.7; 1.8; 1.9; 1.10; 1.13; 1.16; 2.1; 3.1; 3.3; 3.4; 3.5; 3.6; 4.1; 5.1(d)(1); 5.2; 8.4(a) – (d); 8.5(a).

QUESTION: Must a government lawyer conform to the Rules even if doing so would require the lawyer to disobey the direction of a more senior government official?

CONCLUSION: All lawyers, including government lawyers, must abide by the Rules when representing clients. The duties lawyers owe to the governmental entity they represent are the same as those owed to any other client. Under the Rules, lawyers owe their clients loyal, competent, diligent, and honest representation. However, a lawyer is always also an officer of the legal system and, in litigated matters, of the court directly. No obligation to a client—including one that happens to be a governmental entity—justifies a lawyer in violating the Rules. For that reason, a lawyer’s discretion to disobey a superior’s directives that would result in violations of the Rules may never be abridged, even if that superior accurately conveys the desires of the client governmental entity. It is especially true that a lawyer may not violate those Rules requiring candor and fair advocacy in the conduct of litigation in deference to the demands of a client, even if the client’s authorized representative is a high-ranking government official or one of its officers or agencies.

Introduction

I. Background

According to 2023 data from the U.S. Bureau of Labor Statistics, approximately 5.2% of all lawyers work for a federal, state or local government agency.[1] While all lawyers face pressure to accommodate the demands of clients and superiors, the pressures faced by government lawyers may at times be heightened because the governmental client is perceived or represented to be a special case. At times, government lawyers may be expressly required to engage in “zealous advocacy” on behalf of government policies as articulated by elected officials or their political appointees.[2] In such cases, there is a risk that the Rules may be given short shrift, and in extreme cases superiors may encourage or require lawyers to ignore or “bend” the Rules to accomplish governmental objectives. In cases where government lawyers are, directly or implicitly, obligated to obey orders given by superiors, be they other lawyers in a chain of command, political appointees, or even elected officials, it is important for lawyers to have clear guidance as to their ethical obligations. This opinion applies broadly to the obligations of all government lawyers.

II. Lawyers Are Personally Responsible for Upholding Professional Ethics

Each person who is admitted to practice law in New York State takes an oath of office, prescribed in the State Constitution, to “support the constitution of the United States, and the constitution of the State of New York, and that [he or she] will faithfully discharge the duties of the office of [attorney and counselor-at-law], according to the best of [his or her] ability.”[3] The duties of the office of attorney and counselor-at-law include, first and foremost, adherence to the Rules. Accordingly, “A lawyer is bound by these Rules notwithstanding that the lawyer acted at the direction of another person.”[4] Adherence to the Rules is therefore the personal obligation of each lawyer, and each lawyer may be personally disciplined for violating the Rules.

New York’s Rules are promulgated by the Appellate Division of the Supreme Court of the State of New York. The inherent power of courts to regulate lawyers who appear before them is long and well established by both state and federal precedent.[5] In New York, this power today is enshrined in Judiciary Law § 90 and Part 520 of the Rules of the Court of Appeals, but its roots are ancient. “The first Constitution of the State declared a like rule in terms not widely different. Provision was there made that ‘all attorneys, solicitors and counselors at law hereafter to be appointed, be appointed by the court and licensed by the first judge of the court in which they shall respectively plead or practice; and be regulated by the rules and orders of the said courts’ (Constitution of 1777, § 27). *          *          *          [The current Judiciary Law provides] a renewed declaration that lawyers are subject to the control and power of the court.”[6] Thus, a lawyer once admitted to practice becomes “an officer of the court, and, like the court itself, an instrument or agency to advance the ends of justice.”[7] Finally, only lawyers admitted in New York State have the unqualified right to be admitted to practice before the United States District Court for the Southern District of New York.[8] This too reflects long-standing tradition, for “a lawyer is admitted into a federal court by way of a state court. . . .”[9] Accordingly, New York lawyers must comply with the Rules in representing clients in both state courts and federal courts sitting in New York.[10]

Under the Rules, lawyers have dual responsibilities. “A lawyer, as a member of the legal profession, is [both] a representative of clients and an officer of the legal system with special responsibility for the quality of justice.”[11] On the one hand, lawyers have the duty to their clients to be loyal, competent, diligent, independent, and truthful. On the other, they owe the legal system and the courts before which they appear duties of candor and fair play. When these obligations conflict, “[t]he Rules of Professional Conduct often prescribe terms for resolving such conflicts. Nevertheless, within the framework of the Rules, many difficult issues of professional discretion can arise. The lawyer must resolve such issues through the exercise of sensitive professional and moral judgment, guided by the basic principles underlying the Rules.”[12]

This principle, most obvious as between lawyer and client, has also been clearly articulated in another analogous relationship, that between a law firm and its associates. In Wieder v. Skala,[13] the New York Court of Appeals held that associate attorneys, although employees of a law firm, could not be required by their firm to disregard their ethical duties. In coming to that conclusion, the Court reasoned that an associate was independently obligated to follow the ethical rules of the profession, whatever his or her employment status might be.

Associates are, to be sure, employees of the firm but they remain independent officers of the court responsible in a broader public sense for their professional obligations. Practically speaking, plaintiff’s duties and responsibilities as a lawyer and as an associate of the firm were so closely linked as to be incapable of separation. It is in this distinctive relationship between a law firm and a lawyer hired as an associate that plaintiff finds the implied-in-law obligation on which he founds his claim. . . .  [I]n any hiring of an attorney as an associate to practice law with a firm there is implied an understanding so fundamental to the relationship and essential to its purpose as to require no expression: that both the associate and the firm in conducting the practice will do so in accordance with the ethical standards of the profession.[14]

Accordingly, whether a government lawyer is conceived of as being an “employee” of a government entity[15] or more akin to that entity’s retained “counsel,” that lawyer’s personal responsibility to uphold the Rules remains the same. While this obligation is inherent to a lawyer’s status as a member of the Bar, it is also noteworthy that in 1998 Congress wrote it into federal law.  The so-called McDade-Murtha Amendment provides in relevant part that “An attorney for the Government shall be subject to State laws and rules . . . governing attorneys in each State where such attorney engages in that attorney’s duties, to the same extent and in the same manner as other attorneys in that State.”[16] Therefore, under all circumstances, a government lawyer who is a member of the New York Bar must always comply with the Rules, and so must always consider his or her obligations under the Rules when given a directive by a superior.

III. Government Lawyers Owe the Government Agency That Employs Them the Same Obligations That All Lawyers Owe Their Clients

There is no dispute that a lawyer employed by the United States or by a state or local government agency represents the respective government and not any individual. In that regard, the government is a client, and in the rubric of the Rules, an organizational client.[17] We assume for the purpose of this Opinion that the President of the United States, either directly or through his authorized officers and agents, is entitled to give instructions to DOJ lawyers, and likewise that a state’s governor or a city’s mayor similarly speak as the chief executive in their respective domains.[18] The question presented here applies equally to all: Whether a subordinate government lawyer, DOJ or otherwise, is obliged to refuse a particular instruction if, in the lawyer’s independent professional judgment, doing so is necessary to avoid violating the Rules.

The Rules distinguish generally between the objectives of a representation and the means to achieve those objectives. Assuming they are lawful, the client has the ultimate say as to the objectives of a legal representation.[19] A lawyer may never assist a client in achieving unlawful ends.[20] However, the means for achieving a client’s lawful objectives are largely left to the discretion of the lawyer. In crafting and executing the means to achieve the client’s lawful objectives, the Rules only require the lawyer to consult with the client.[21] Of course, in determining and executing those means, the lawyer must act with due competence and diligence.[22] The lawyer must communicate effectively with the client, preserve the client’s confidences, and avoid conflicts of interest that degrade the lawyer’s loyalty to the client.[23]

But how lawyers conduct themselves in crafting and executing the means to achieve a client’s lawful objectives remains their own personal responsibility. Throughout the representation of any client, a lawyer “shall exercise independent professional judgment” and “not knowingly make a false statement of fact or law to a third person.”[24] In litigated matters, a lawyer owes duties of fair advocacy and candor to the court that cannot be evaded by deferring to client instructions.[25] That is not to suggest that the client has no say whatever in the means by which the representation shall be effected. When the lawyer and the client disagree about such means, the Rules, while not prescribing an outcome, encourage the lawyer and client to seek a mutually acceptable resolution.[26] But if no such resolution is possible and the client insists that a lawyer act in ways that foster criminal or fraudulent conduct, or would otherwise result in a violation of the Rules, the lawyer may and at times must terminate the representation.[27]

Thus, the Rules clearly contemplate that not all client directives must be obeyed. For example, even assuming that the President is the final arbiter of the objectives of his administration, and DOJ lawyers must accept all his lawful objectives, all lawyers retain their personal discretion as to how to achieve lawful objectives. This conclusion necessarily requires lawyers to retain the discretion to reject those objectives that cannot be achieved by means that are consistent with the law and with the lawyer’s personal obligations under the Rules.

Nothing in the Rules suggests that directives from the President, governor, county executive, mayor or other government executive functionaries are exempt from this conclusion. For example, while the President’s oversight of prosecutorial decisions may very well be delegated to his sole discretion by the Constitution,[28] it does not follow that lawyers who act on behalf of the President cannot be professionally disciplined for violating the Rules. Many lawyers acting for Presidents, and even a President himself, have been suspended or disbarred for conduct in violation of ethical rules.[29] Of particular relevance here, former President Richard M. Nixon, a member of the New York Bar, was disciplined for improperly obstructing, as President, investigations into the Watergate break-in by his own DOJ and other Executive Branch agents. That his activities may arguably have been within his Constitutional powers to control the scope of prosecutorial activity was not relevant. The court, in affirming his disbarment, acknowledged “that while Mr. Nixon was holding public office he was not acting in his capacity as an attorney. However, the power of the court to discipline an attorney extends to misconduct other than professional malfeasance when such conduct reflects adversely upon the legal profession and is not in accordance with the high standards imposed upon members of the Bar.”[30] As was true then for President Nixon, it remains true today for all lawyers, including those who work as lawyers for the President, a governor or a mayor.

IV. Lawyers’ Duties to Their Clients Must Be Balanced Against Their Duties to the Legal System and the Courts

While demands of clients that may conflict with a lawyer’s obligations to the law and Rules may arise in many contexts, in none is the proper resolution so clear as when litigation is involved. Lawyers have a special relationship to the courts and to the legal system generally.

As an officer of the legal system, each lawyer has a duty to uphold the legal process; to demonstrate respect for the legal system; to seek improvement of the law; and to promote access to the legal system and the administration of justice. In addition, a lawyer should further the public’s understanding of and confidence in the rule of law and the justice system because, in a constitutional democracy, legal institutions depend on popular participation and support to maintain their authority.[31]

Accordingly, the Rules expressly mandate how lawyers must comport themselves before adjudicatory tribunals. “A lawyer shall not . . . assert an issue [in a proceeding] unless there is a basis in law and fact for doing so that is not frivolous.”[32] “A lawyer shall not knowingly . . . make a false statement of fact or law to a tribunal . . .; fail to disclose to the tribunal controlling legal authority known to the lawyer to be directly adverse to the position of the client . . .; or offer or use evidence that the lawyer knows to be false.”[33] A lawyer must not fail to comply with local customs of courtesy, engage in undignified or discourteous conduct, intentionally violate established rules of procedure or evidence, or engage in conduct intended to disrupt the tribunal.[34] A lawyer must not suppress evidence or assist to make witnesses unavailable, or make statements that the lawyer does not reasonably believe to be relevant or supported by evidence, ask questions that the lawyer has no reasonable basis to believe are relevant, or threaten criminal prosecution solely to obtain an advantage in a civil matter.[35] A lawyer may not improperly communicate with or be seen to influence jurors, either directly or indirectly through public statements.[36] All these express proscriptions dovetail with the lawyer’s overarching obligation to “not knowingly make a false statement of fact or law to a third person.”[37]

Such Rules forbid lawyers from certain conduct without regard to the interests of the client, and even if the client demands otherwise. A lawyer who engages in such prohibited conduct under the Rules is subject to disciplinary action under all circumstances and no matter what the client wanted or who the client is.

V. Lawyers Must Disregard Client Instructions That Would Result in Violations of the Law or the Rules

Whether a lawyer must exercise discretion and independent professional judgment to disregard client instructions that the lawyer believes would result in a violation of law or the Rules was addressed by New York State Bar Association Opinion 751 (Jan. 31, 2002).[38] At issue there was whether a lawyer employed as a staff attorney by a New York State government department of social services must accept more matters than the lawyer believes that he or she may competently handle if directed to do so by a superior. The opinion held that the lawyer was obligated to decline work if the lawyer was incapable of providing competent representation.[39]  The opinion explained:

The attorney may not comply with the direction of an agency official to “just show up” or “just do the best you can” without preparation, if the result will be to represent the department incompetently. On the contrary, the staff attorney, as a government official and lawyer for the government, has an independent professional obligation to carry out the department’s legal responsibilities in judicial and administrative proceedings in which the staff attorney represents the department, and cannot comply with instructions that would require the lawyer to act antithetically to the law and to the general ethical responsibility to “seek justice.”

While this analysis was grounded on the superseded Code of Professional Responsibility, it applies with equal force under the current Rules,[40] and it is not limited to the duty of competence.[41] Each lawyer retains a personal obligation to comply with the Rules, even if also being obliged to “advocate zealously” on behalf of the government that employs them. [42] Because each lawyer must comply with the Rules, it follows necessarily that each lawyer must retain the independent judgment to determine whether a certain course of conduct may result in a violation of the Rules. That being so, no government lawyer may follow a policy that requires them to follow instructions regardless of consequences.

Such a policy is inconsistent with the Rules as well as the traditional role of lawyers in the United States, in two ways. First, as described above, each lawyer takes an oath of office to support the Constitution that is no less valid and sacred than that taken by the President, the Attorney General, any other officer of the federal government or any state or local executive. Lawyers, as officers of the legal system and the courts, may not take positions or make arguments that they believe have no legal basis. Therefore, lawyers must always retain the discretion to make independent professional judgments about the law—from the law of the land down to the lowliest rule and regulation.

Second, those lawyers who supervise other lawyers must themselves ensure that the Rules are not violated. Rule 5.1(d)(1) expressly provides that lawyers who order, direct or ratify specific violative conduct are themselves responsible for that conduct. “[T]hose lawyers] who supervise other lawyers, are indirectly responsible for improper conduct of which they know or should have known in their exercise of reasonable managerial or supervisory authority.”[43] Indeed, the McDade Murtha Amendment expressly prohibits supervising DOJ lawyers from requiring subordinate lawyers to engage in conduct that would violate the Rules.[44] It follows, therefore, that a lawyer may also violate Rule 5.1 by threatening a subordinate lawyer with charges of “insubordination” or “misconduct” in order to induce that lawyer to violate the Rules, and the courts have so held. The Court of Appeals in Wieder v. Skala also observed that “Intrinsic to this relationship [between a law firm and its associate lawyer], of course, was the unstated but essential compact that in conducting the firm’s legal practice both plaintiff and the firm would do so in compliance with the prevailing rules of conduct and ethical standards of the profession. Insisting that as an associate in their employ plaintiff must act unethically and in violation of one of the primary professional rules amounted to nothing less than a frustration of the only legitimate purpose of the employment relationship.”[45]

For those reasons, lawyers cannot abdicate their professional judgment to independently assess, and cannot be made by their supervisors to blindly espouse, the legal arguments concocted by their clients, and it matters not that the client may be the President, a governor or a mayor. Accordingly, a lawyer who violates the Rules risks professional disciplinary action, even when “zealously advocating” a position dictated by the President or another officer or agency of the federal or any state or local executive.

VI. Conclusion

Lawyers are essential to the Rule of Law, and none are perhaps more so than government lawyers facing pressure from political leaders. “When political leaders set a negative example, professional commitments to just practice become more important. It is hard to subvert a ‘rule-of-law’ state without lawyers. . . .”[46] Requiring government lawyers to defer to their superiors’ demands even when doing so would result in a violation of the Rules sets just that sort of negative example. It tends to validate a “just following orders” defense that we lawyers, if we are true to our professional commitments to personal ethical practice, must vigorously oppose. Any lawyer who violates the Rules at the behest of a client or employer—whoever that client or employer may be—is still subject to professional discipline for such violation.