Can a lawyer who works for a police-misconduct review board engage in partisan political activity?

Plain-English summary

A municipal charter established a Civilian Complaint Review Board (CCRB) to investigate complaints of police misconduct such as excessive force and abuse of authority. The CCRB can review documents, interview and compel witnesses through compulsory process, and issue findings; a "substantiated" finding comes with a disciplinary recommendation. The CCRB cannot itself impose a sanction or refer matters to prosecutors (only the Police Department can), but under a memorandum of understanding the CCRB's attorneys prepare charges and prosecute substantiated complaints before a Police Department tribunal (¶¶ 1-5). The inquiry asked whether a CCRB attorney may engage in partisan political activity (¶ 6).

The committee built on its line of opinions about prosecutors and investigative attorneys. In N.Y. State 675 (1995) and 683 (1996), it concluded that an Assistant District Attorney may not campaign for an incumbent DA, reasoning that prosecutors have a duty to seek justice and to exercise discretion in a disinterested, nonpartisan way and to avoid the appearance of doing otherwise, all under the conduct-prejudicial-to-the-administration-of-justice standard now in Rule 8.4(d) (¶ 7). In N.Y. State 696 (1997), it extended that restriction to attorneys at a municipal Department of Investigation who had subpoena power and a duty to refer criminal misconduct to prosecutors, calling them active participants in a critical stage of the prosecutorial process (¶¶ 8-9).

Applying those opinions, the committee found CCRB attorneys' powers substantially similar to the DOI attorneys': they can compel testimony, subpoena documents, review records, and draft reports and recommendations. The only material difference is that the CCRB reports to the Police Department rather than referring directly to prosecutors, which the committee found did not change the result, because the Department holds the sanction and referral power and the CCRB plays a critical role in influencing those decisions (¶¶ 10-11). Recognizing the CCRB's narrower jurisdiction, the committee still concluded the agency's role in the police-society relationship and the inadequacy of the existing checks against the perception of political influence warranted the restriction, subject to applicable law including the First Amendment (¶¶ 11-13).

In practice

Under the New York rules as they stood at the time of the opinion, the committee held that the bar on partisan political activity reaches government lawyers who, though not prosecutors in name, wield investigative and quasi-prosecutorial powers (subpoena authority, charge preparation, and the ability to affect careers and reputations). The opinion expressly notes it is subject to applicable law, including the First Amendment, and it grounds the restriction in the appearance and risk that political attitudes could affect such an attorney's decisions, not in any finding of actual bias.

Common questions

Q: Why can't a CCRB attorney do partisan political work?

A: The committee concluded that an attorney with the CCRB's investigative and quasi-prosecutorial powers plays a substantial law-enforcement role, so partisan political activity is prejudicial to the administration of justice under Rule 8.4(d) (¶¶ 10, 13).

Q: Does it matter that the CCRB cannot itself punish or prosecute?

A: No. The committee concluded the lack of direct sanction or referral power did not change the result, because the Police Department holds those powers and the CCRB critically influences their exercise (¶¶ 10-11).

Q: Does the First Amendment limit this opinion?

A: The committee expressly stated the opinion is subject to applicable law, including the First Amendment (¶ 12).

Background and rules framework

The opinion interprets New York Rule of Professional Conduct 8.4(d) (conduct prejudicial to the administration of justice), the successor to DR 1-102(A)(5), corresponding to ABA Model Rule 8.4(d). The analysis extends the prosecutor and investigative-attorney line of opinions to a police-oversight agency lawyer based on the functional powers the lawyer holds.

Citations and references

Rules of Professional Conduct:

• MR 8.4 / NY RPC 8.4(d) (conduct prejudicial to the administration of justice)

Other opinions cited:

• N.Y. State 675 (1995): Assistant DA may not campaign for an incumbent DA
• N.Y. State 683 (1996): reaffirming the prosecutor political-activity restriction
• N.Y. State 696 (1997): extending the restriction to Department of Investigation attorneys

See also

• NY State Bar Op. 1073: Defense counsel on a District Attorney's conviction integrity committee
• NY State Bar Op. 1074: Part-time Social Services lawyer taking assigned-counsel cases

Source

• Landing page: https://nysba.org/ethics-opinion-1071/