Rainmaker Delay Provides City Pro Bono Legal Help

WAYNE G. HAWLEY: Navigating 'conflict' waters.

As the reverberations of the fiscal crisis have trickled up to well-heeled Manhattan law firms—prompting them to delay the start date for fresh law school graduates—the city is welcoming a new type of employee: an unsalaried government worker who is already on the payroll of a private company.

In March, Latham and Watkins, a New York law firm, started the trend of offering new hires $75,000 to postpone their first day for one year. Other law firms followed suit by offering the stipend in lieu of a starting salary that is often more than $150,000 a year.

'Free Help a Win-Win'

"My sense is that everybody is overworked and not a lot of hiring is going on and if we can get free help for a year, it's a win-win," said Conflicts of Interest Board Deputy Executive Director and General Counsel Wayne G. Hawley. He added that 14 employees have joined several different agencies with interesting legal work available.

"The Law Department has a tremendous workload and these volunteer attorneys can help us stay current with that work, while not displacing any salaried Law Department attorneys," said Stuart D. Smith, Director of Legal Recruitment for the city Law Department.

As more law firms sign on, the city has begun to grapple with how to classify a growing number of employees who are on the payroll of a private company. After three of the young attorneys joined city service, the COIB issued an advisory opinion, which ruled these employees enjoy the rights of civil service status with a few caveats.

The opinion centered on whether these associates would be subject to the provisions of the Conflicts of Interest Law, and if so, would its restrictions extend to their activities after completion of a year in city government.

The board found that lawyers must be considered civil servants because "to suggest that individuals with the identical authority and responsibility as city employees are not themselves public servants, even though they will be performing the same duties for the city as those employees. . . strikes the board as incorrect as a matter of law and policy."

Precedent From Fiscal Crisis

The decision was based on prior precedents set during the fiscal crisis of the 1970s when employees of private firms joined city agencies to provide temporary assistance and advice, but continued, as the associates would, to receive compensations and benefits from their firms. Back then, the Board of Ethics allowed the practice so long as the temporary employees were recused from working on matters involving their private employers.

The Conflicts of Interest Board renewed this provision in granting waivers for these associates to work in city government. "Because the Associates will be, for most purposes, 'public servants,' they will be required to observe most of the basic strictures of [Conflicts of Interest Law], such as the prohibitions on using their city positions for personal or private advantage," its ruling stated.

These employees will not be allowed to work on projects while with the city that would directly affect their law firm's business. It will be more difficult, however, to control what these employees do after leaving city service.

The board said determinations of impropriety would be judged on a caseby case basis, "for those associates who in their first post-employment year after leaving city service may be required to 'appear' before the city agency they served while in the program, a group the board anticipates will comprise a minority of participants in the program," the opinion stated.

The board at the close of its opinion emphasized that these employees were civil servants, but only for the purposes of the Conflict of Interest Law. "This conclusion should not be read to suggest in any way that the associates may be deemed city employees for any other purpose."