Can a county legislator defend criminal cases in the same county, and does it matter how the district attorney's office is funded?
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This page answers the general question as of 1976. 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 clarified N.Y. State 424 (1975), which held it improper for a county legislator to defend a criminal matter where the People are represented by a district attorney funded by the legislature on which the lawyer sits. The committee explained that the prohibition applies to all district attorneys and assistant district attorneys whose salaries are fixed as a "line item" in the legislative budget. It does not apply where the legislature appropriates a lump sum for the entire office and the district attorney himself sets each assistant's salary, because in that situation the legislature's connection to the prosecution is too remote to raise public concern.
The committee anchored the rule in the twin purposes of part-time-official disqualification: preventing a private client from gaining an improper advantage through the lawyer's office, and preventing public suspicion that such an advantage exists. Although the committee thought it highly unlikely a legislator would actually misuse the position, it found public suspicion of possible misuse great enough to justify disqualification where the legislature controls individual prosecutorial salaries (N.Y. State 292 (1973)). It tied the result to a line of opinions barring legislators from opposing officials dependent on their legislature (N.Y. State 209 (1971); 141 (1970); 110 (1969); 259 (1972); 326 (1974); 418 (1975)), reasoning that an opponent dependent on the legislature is as troubling as a dependent client.
The committee found no meaningful distinction between a legislature appointing a county attorney (already disqualifying under N.Y. State 418 (1975)) and a legislature controlling an assistant district attorney's salary, noting that the State Constitution sets only a floor, not a ceiling, on the district attorney's pay (Article XIII, section 13). To avoid unfairness, the committee directed that past non-compliance not be grounds for discipline, and that legislators who in good faith were unaware of the rule when last elected need not resign or drop pending criminal matters until their current term expires.
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 (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 does the district attorney's budget structure decide the conflict?
A: The committee reasoned that when the legislature fixes prosecutorial salaries by line item, the public may suspect that a legislator-defender could influence the prosecutor; when the legislature gives a lump sum and the district attorney sets salaries, that connection is too remote to raise concern.
Q: Does the rule reach assistant district attorneys as well as the elected DA?
A: Yes. The committee applied the bar to all district attorneys and assistant district attorneys whose salaries are set as a line item, finding no distinction between controlling the elected prosecutor's pay and an assistant's.
Q: Were legislators who already defended such cases subject to discipline?
A: No. The committee directed that past non-compliance not be a ground for discipline, and that legislators who in good faith were unaware of the rule when last elected may keep their office and current criminal matters until their term expires.
Background and rules framework
The opinion applies the then-current New York Code's part-time-public-official provisions, EC 5-15, EC 7-13, EC 8-8, EC 9-1, EC 9-2, EC 9-6, DR 5-101, DR 5-105(A), and Canon 9, refining N.Y. State 424 (1975) and the line running through N.Y. State 226 (1972), 418 (1975), and related opinions. 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 EC 5-15, EC 7-13, EC 8-8, EC 9-1, EC 9-2, EC 9-6; DR 5-101, DR 5-105(A); Canon 9
Other opinions cited:
- N.Y. State 424 (1975): the opinion clarified here; legislator may not oppose a DA funded by his legislature
- N.Y. State 418 (1975): legislator may not oppose a legislature-appointed county attorney
- N.Y. State 226 (1972): legislator may practice in a court whose judges' salaries the legislature sets, with limits
See also
- NY State Bar Op. 435: A part-time county legislator's private practice
- NY State Bar Op. 430: A part-time prosecutor suing the county in a civil case
- NY State Bar Op. 427: Public officers in an indigent-defense plan
Source
- Landing page: https://nysba.org/opinion-431/
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