If a statute bars a legislator from appearing before a state agency but expressly lets his firm's other lawyers appear, may they?

Plain-English summary

The committee began with the principle that an illegal act by a lawyer is usually unethical, but the converse does not hold: many lawful acts still violate the Code (N.Y. State 323 (1974)). It then restated the usual rule. Ordinarily neither a legislator-lawyer nor any member of his firm may appear before a legislative committee (ABA 296 (1959)) or before boards or agencies whose members are elected or approved by the legislature (DR 5-105(D)). Where a statute specifically bars the legislator from appearing before certain agencies or representing claims against the State (cf. Public Officers Law section 73(4)), the ordinary imputation rule means his partners and associates are likewise barred, because neither the firm nor any member may accept employment the firm cannot properly accept (ABA 72 (1932); DR 5-105(D)).

The question was whether those rules still apply when a statute expressly and affirmatively permits the legislator's partners and associates to appear before the specified agency. The committee discussed ABA 306 (1962), which treated such a statute as the State's "consent" to the representation, so that representation pursuant to express statutory permission is not improper, and observed that such authorization would seem to satisfy DR 5-105(C). It acknowledged some doubt, because adequacy of representation and effect on professional judgment might require case-by-case analysis, and there remained an appearance-of-impropriety concern under Canon 9, DR 9-101(B), DR 8-101(A), and EC 8-8, 9-2, and 9-6, especially if the legislator could share in the fees.

The committee reached its conclusion reluctantly: where the State has by law expressly determined that such conduct accords with public policy, a very clear case is required before expressly permitted conduct is treated as unethical, and this inquiry presented no such clear case. So, in spite of DR 5-105(D), where a statute expressly authorizes the appearance of the partners and associates of a disqualified legislator-lawyer, that appearance is not improper. But in the usual situation, where the disqualifying statute is silent as to partners and associates, they remain disqualified along with the legislator. The committee expressed no view on the wisdom of such a statute.

Currency note

This opinion was issued in 1975, before New York replaced the Code of Professional Responsibility with the Rules of Professional Conduct in 2009 (imputation is now governed by Rule 1.10, government-lawyer conflicts by Rule 1.11, and concurrent conflicts by Rule 1.7). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: If a legislator can't appear before an agency, can his partners?

A: Under this opinion, ordinarily no. The legislator's disqualification is imputed to his firm under DR 5-105(D) unless a statute expressly authorizes the firm's appearance.

Q: What changes if a statute expressly lets the firm appear?

A: Per the opinion, such express statutory authorization is treated as the State's consent and seems to satisfy DR 5-105(C), so the partners' and associates' appearance is not improper, though the committee reached that result reluctantly.

Q: Does the express-authorization exception cure every concern?

A: The committee flagged residual appearance-of-impropriety concerns under Canon 9 and EC 8-8, 9-2, and 9-6, especially where the legislator may share in the fees, but found no clear case for treating the expressly permitted conduct as unethical.

Background and rules framework

The opinion applies the then-current New York Code's imputation and public-office provisions, Canon 9, EC 8-8, EC 9-2, EC 9-6, DR 5-105(C) and (D), DR 8-101, and DR 9-101(B), with Public Officers Law section 73(4), drawing on ABA 72 (1932), ABA 296 (1959), and ABA 306 (1962). The current analogues are Rule 1.10 (imputation), Rule 1.11 (government-lawyer conflicts), and Rule 1.7 (concurrent conflicts).

Citations and references

Rules of Professional Conduct:

• MR 1.10 (imputation of conflicts)
• MR 1.11 (special conflicts for government lawyers)
• MR 1.7 (concurrent conflict of interest)
• NY Canon 9; EC 8-8, EC 9-2, EC 9-6; DR 5-105(C), DR 5-105(D), DR 8-101, DR 9-101(B)

Statutes:

• N.Y. Public Officers Law section 73(4) (legislators' appearances against the State)

Other opinions cited:

• ABA 306 (1962): express statutory authorization treated as the State's consent
• ABA 72 (1932): a firm may not accept employment any member cannot properly accept
• N.Y. State 323 (1974): a lawful act may still violate the Code

See also

• NY State Bar Op. 426: A referral-service administrator taking its referrals
• NY State Bar Op. 418: A legislator opposing the county attorney
• NY State Bar Op. 433: A conflict from a likely impleader

Source

• Landing page: https://nysba.org/opinion-415/