Can a part-time county legislator defend a criminal case in the same county where the district attorney's office is funded by his legislature?
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This page answers the general question as of 1975. Ezel answers yours: whether it's allowed on your facts, under the current New York Rules of Professional Conduct, with citations.
Plain-English summary
The committee considered whether a part-time county legislator may represent defendants in criminal court when the prosecution is by a district attorney funded by the county legislature on which the lawyer sits. It began from EC 8-8, which recognizes that it is highly desirable for attorneys to serve as legislators, tempered by Canon 9's requirement that part-time legislators conduct their private practice so as to avoid any appearance of professional impropriety. EC 9-1 stresses the public's need for faith that justice can be obtained through the legal system, and EC 9-6 requires lawyers to encourage respect for the law and the courts.
The committee reasoned that the office of district attorney represents the authority of the State, and that it would be fundamentally unsound to place the prosecutor in any position where the public might reasonably perceive even a temptation to compromise the State's interest in the outcome of a proceeding. Because the district attorney's office must petition the county legislature for its funds, an adversarial relationship between an individual county legislator and the district attorney should be avoided, since the impression of impropriety is inevitably created in the eyes of the public (N.Y. State 141 (1970); N.Y. State 326 (1974); EC 9-2).
The committee concluded it is improper for a part-time county legislator to represent a defendant in a court where the adversary is the district attorney whose funding is directly determined by the county legislature. The committee later clarified the scope of this rule in N.Y. State 431 (1976), distinguishing "line item" budgets that fix prosecutorial salaries from lump-sum appropriations.
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 Treat this page as historical context, not current guidance.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 defend a criminal case prosecuted by a DA his legislature funds?
A: The committee reasoned that because the district attorney's office depends on the legislature for its funding, a legislator appearing against it creates an inevitable public impression of impropriety, which Canon 9 and EC 9-2 require lawyers to avoid.
Q: Does the rule depend on any actual misuse of the legislator's position?
A: No. The committee grounded the bar in the appearance of impropriety and public perception, not on proof that the legislator would actually influence the prosecution.
Q: Was this rule later refined?
A: Yes. N.Y. State 431 (1976) clarified Opinion 424, holding the bar applies where the legislature fixes prosecutorial salaries by "line item" but not where it appropriates a lump sum and the district attorney sets individual salaries.
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 141 (1970), 226 (1972), and 326 (1974). 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 141 (1970); N.Y. State 326 (1974): appearance of impropriety where a legislator opposes a body dependent on the legislature
- N.Y. State 226 (1972): legislator practicing in a court whose judges' salaries the legislature sets
See also
- NY State Bar Op. 431: A county legislator and the DA's line-item budget
- NY State Bar Op. 418: A legislator opposing the county attorney
- NY State Bar Op. 435: A part-time county legislator's private practice
Source
- Landing page: https://nysba.org/opinion-424/
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