Can a part-time county legislator represent a client in court against the county attorney his own legislature appoints?

Plain-English summary

The committee considered whether a part-time county legislator may represent parties in family court in his county when the opposing party is represented by the county attorney, who is appointed by the legislature of which the lawyer is a member. As in its companion opinions, it started from EC 8-8, recognizing the value of attorneys serving as legislators, against Canon 9's requirement that part-time legislators conduct their private practice to avoid any appearance of professional impropriety, and EC 9-1's and EC 9-6's emphasis on public faith in the legal system and respect for the courts.

The committee reasoned that the public may reasonably conclude that a legislature-appointed county attorney is to some degree beholden to a member of that legislature. If a member of the county legislature appeared in court against the county attorney or an assistant, an appearance of impropriety would arise and public confidence in the integrity of the legal system and the profession would be eroded (EC 9-2; N.Y. State 326 (1973)).

The committee concluded that it is improper for a part-time county legislator to appear in opposition to the county attorney, or an assistant county attorney, in the county in which he is a legislator where the county attorney is appointed by the legislature. This appointment-based rule was later extended by analogy in N.Y. State 424 (1975) and N.Y. State 431 (1976) to a district attorney whose salary the legislature controls by line item.

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 (conflicts are now governed by Rule 1.7 and the special conflicts of government lawyers by Rule 1.11). 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 Treat this page as historical context, not current guidance.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: Why can't a county legislator oppose the county attorney in court?

A: The committee reasoned that the public may view a legislature-appointed county attorney as beholden to a legislator, so a legislator appearing against him creates an appearance of impropriety that erodes public confidence (EC 9-2; Canon 9).

Q: Does it matter that the case was in family court rather than involving the county directly?

A: Per the opinion, the controlling fact is that the opposing counsel is the legislature-appointed county attorney; the appearance of impropriety arises from that relationship.

Q: How does this relate to the district-attorney opinions?

A: The committee built the same reasoning into N.Y. State 424 (1975) and N.Y. State 431 (1976), which barred a legislator from opposing a district attorney whose funding the legislature controls.

Background and rules framework

The opinion applies the then-current New York Code's appearance-of-impropriety and public-office provisions, Canon 9, EC 8-8, EC 9-1, EC 9-2, and EC 9-6, drawing on N.Y. State 226 (1972) and 326 (1973). The current analogues are Rule 1.7 (concurrent conflicts) and Rule 1.11 (special conflicts for government officers and employees).

Citations and references

Rules of Professional Conduct:

• MR 1.7 (concurrent conflict of interest)
• MR 1.11 (special conflicts for government lawyers)
• NY Canon 9; EC 8-8, EC 9-1, EC 9-2, EC 9-6

Other opinions cited:

• N.Y. State 326 (1973): appearance of impropriety where a legislator opposes a legislature-linked official
• N.Y. State 226 (1972): legislator practicing where the legislature sets judges' salaries

See also

• NY State Bar Op. 424: A county legislator defending criminal cases
• NY State Bar Op. 431: A county legislator and the DA's line-item budget
• NY State Bar Op. 415: Firm disqualification and the legislator statutory exception

Source

• Landing page: https://nysba.org/opinion-418/