What private legal work can a part-time county legislator take on without a conflict with the county he serves?

Plain-English summary

The committee set out guidelines for the private practice of part-time county legislators (and other part-time legislators), responding to recurring inquiries. The governing principle is that the same basic standards apply to all part-time public officials: a lawyer holding public office should not represent private interests adverse or potentially adverse to the public body he serves (EC 8-8), should not use his position to influence any adjudicatory body for a client or accept employment meant to influence his official action (DR 8-101(A)(2), (3)), and may not state or imply an ability to improperly influence a tribunal, legislative body, or official (DR 9-101(C)). Drawing on N.Y. State 431 (1976), the committee explained that the disqualification rules guard against private clients retaining a part-time official to gain an improper advantage and against public suspicion that they might; where public suspicion of misuse is great enough, disqualification follows even if misuse is highly unlikely. Conversely, where there is no actual or potential conflict, no improper influence or appearance of it, and no basis for public suspicion, there is no disqualification.

Applying this, the committee found no basis to disqualify a county legislator, merely by virtue of the office, from representing clients seeking business franchises or tax refunds against municipalities within the county, or from handling ministerial applications in the county clerk's office; the ability to vote on a municipality's financial affairs did not by itself suggest improper influence. It cautioned, however, that disqualification would arise if the matter involved the validity or interpretation of county legislation or regulations, or if either client or lawyer sought an improper advantage, or if particular facts created a direct conflict or public suspicion.

The committee answered the County Health Department permit question in the negative: representing a private client seeking such a permit could create a direct conflict between the lawyer's duty to the client and his duty to the county to protect the public interest, and the possibility of public suspicion that the application would be improperly facilitated (N.Y. State 259 (1972)). On court appearances within the county, the committee allowed them in the absence of special circumstances, but identified disqualifying situations: where the judge was appointed or subject to confirmation by the legislative body of which the lawyer is a member; where the county or a county agency is a contesting party; where the validity or interpretation of a county ordinance is at issue; and, in criminal matters, where the legislature fixes prosecutorial salaries by a "line item" budget (but not where it appropriates a lump sum without fixing individual salaries) (N.Y. State 424 (1975); N.Y. State 431 (1976); N.Y. State 226 (1972)). The same principles govern part-time members of other legislative bodies.

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: Can a county legislator represent a private client seeking a franchise or tax refund from a municipality in the county?

A: Under this opinion, yes, absent special circumstances. The committee found no disqualification merely from holding the office, while cautioning that a conflict arises if the matter touches the validity or interpretation of county legislation or if anyone seeks an improper advantage.

Q: Can the legislator handle a client's application for a County Health Department permit?

A: Per the opinion, no. The committee found a potential direct conflict between the lawyer's duty to the client and his duty to the county, plus a risk of public suspicion that the permit would be improperly facilitated.

Q: Can the legislator appear in county courts?

A: Generally yes, absent special circumstances, but the committee identified disqualifying situations: where the judge is appointed or confirmed by the lawyer's legislative body, where the county is a contesting party, where a county ordinance's validity is at issue, or, in criminal matters, where the legislature fixes prosecutorial salaries by line item.

Q: What is the test for whether a part-time official is disqualified?

A: The committee applied a three-part screen: disqualification follows where there is an actual or potential conflict, an appearance of improper influence, or a basis for public suspicion that the client seeks an improper advantage; absent all three, there is no disqualification.

Background and rules framework

The opinion synthesizes the then-current New York Code's public-office and conflict provisions, EC 5-2, EC 5-14, EC 8-8, EC 9-2, EC 9-6, DR 5-105(A) and (B), DR 8-101(A)(2) and (3), and DR 9-101(C), into a single framework for part-time legislators, building on N.Y. State 110 (1969), 259 (1972), 424 (1975), and 431 (1976). The current Model Rule 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 5-2, EC 5-14, EC 8-8, EC 9-2, EC 9-6; DR 5-105(A), (B); DR 8-101(A)(2), (3); DR 9-101(C)

Other opinions cited:

• N.Y. State 431 (1976): purposes of the part-time-official disqualification rules
• N.Y. State 259 (1972): direct conflict in permit and licensing matters
• N.Y. State 424 (1975); N.Y. State 226 (1972): criminal matters and prosecutorial-salary budgeting; court appearances

See also

• NY State Bar Op. 447: A lawyer retained case by case by one county department
• NY State Bar Op. 444: A town attorney whose partner sues the town
• NY State Bar Op. 1065: A part-time prosecutor's firm suing a separate village

Source

• Landing page: https://nysba.org/opinion-435/