Can a former city councilman sue the city for false arrest over an arrest made during his term in office?

Plain-English summary

The committee considered whether a former city councilman could represent a plaintiff in a false-arrest action against the city when the arrest occurred while he was still serving. The governing standard is EC 9-3, under which a lawyer who leaves public employment should not accept employment in a matter for which he had "substantial responsibility" before leaving, because doing so would create an appearance of impropriety even if none exists (see also DR 9-101(B)). The whole question, the committee said, is whether the lawyer had substantial responsibility regarding the arrest while a councilman.

The committee treated that as a fact-specific inquiry but found that a city councilman generally would not have substantial responsibility for a particular arrest. A councilman is an elected official serving in a legislative capacity, while the arresting officer is typically a civil servant enforcing a penal statute enacted by the State Legislature. On those facts, the connection between the councilman's legislative role and the individual arrest was too attenuated to amount to substantial responsibility.

The committee also measured the situation against former Canon 36, which barred a retired public officer from taking employment in a matter he had "investigated or passed upon" while in office. Because the councilman had not exercised substantial responsibility over the client's arrest, the appearance of impropriety that Canon 36 and EC 9-3 guard against was, on the stated facts, absent.

Currency note

This opinion was issued in 1976, before New York replaced the Code of Professional Responsibility with the Rules of Professional Conduct in 2009 (the duties of former government lawyers are now governed 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 Treat this page as historical context, not current guidance.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: Is a former councilman automatically barred from suing the city over events during his term?

A: No. The committee held the test is whether the lawyer had substantial responsibility for the specific matter while in office (EC 9-3; DR 9-101(B)), not merely whether the events occurred during his term.

Q: Would a councilman normally have "substantial responsibility" for an arrest?

A: Per the opinion, generally not. A councilman serves in a legislative capacity, while the arrest is made by a civil servant enforcing a state penal statute, so the councilman's role in the particular arrest is typically too remote.

Q: Is the analysis the same under former Canon 36?

A: Yes in effect. Canon 36 barred employment in a matter the officer had investigated or passed upon; because the councilman had no substantial responsibility for the arrest, the committee found no appearance of impropriety.

Background and rules framework

The opinion applies the then-current New York Code's former-government-employee provisions, EC 9-3 and DR 9-101(B), read together with former Canon 36. The current analogue is Rule 1.11 (special conflicts of interest for former and current government officers and employees), with Rule 1.12 addressing former judges and adjudicative officers.

Citations and references

Rules of Professional Conduct:

• MR 1.11 (former and current government officers and employees)
• MR 1.12 (former judge, arbitrator, mediator, or other third-party neutral)
• NY EC 9-3; DR 9-101(B); former Canon 36

See also

• NY State Bar Op. 453: A former deputy town attorney's tax-certiorari work
• NY State Bar Op. 457: A state tax attorney's private estate-tax conflict
• NY State Bar Op. 430: A part-time prosecutor suing the county in a civil case

Source

• Landing page: https://nysba.org/opinion-429/