Can a part-time district attorney pool his public salary with his law firm partners?
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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 was asked whether a part-time district attorney may share the salary of his public office with his partners in private practice. It answered that he may, relying on N.Y. State 243 (1972), which held it was not improper for a part-time town attorney to share his official salary with his firm and reasoned that such sharing of fees by partners is well understood by the public and does not create any impropriety or appearance of impropriety.
The committee explained that, in assessing the appearance of impropriety, the sharing of an official salary is generally no more relevant to the public than the fact that the official has affiliated himself with other attorneys in private practice. It reasoned that a part-time official's contribution of his salary to the firm's gross receipts does not necessarily make him more amenable to others' importunities; whether or not he contributes the salary, he will still be recognized as a member of the firm and presumably share in its profits (N.Y. State 223 (1971); N.Y. City 684 (1946)). The committee distinguished opinions addressing judicial salaries (N.Y. State 210 (1971); N.Y. State 370 (1974)).
Because part-time district attorneys are permitted by law and professional ethics to join other lawyers in private practice, the committee held that permitting them to share their official salaries should not, in itself, lessen the public's regard for the office or inhibit the proper administration of justice (comparing EC 7-13 with EC 8-8 and EC 9-6). It therefore concluded that a part-time district attorney may share his official salary with his private partners.
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 special responsibilities and conflicts of part-time public lawyers now arise under Rule 1.7 and related provisions, and division of fees within a firm is addressed by Rule 5.4). 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 Treat this page as historical context, not current guidance.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 part-time DA put his county salary into the firm's books?
A: Under this opinion, yes. The committee held a part-time district attorney may share his official salary with his private partners without creating an impropriety or appearance of impropriety.
Q: Doesn't pooling the salary make the DA more subject to influence?
A: The committee held it does not. It reasoned that the DA is recognized as a firm member and shares in its profits regardless, so contributing the salary does not make him more or less suspect.
Q: Is this the same rule for judges?
A: No. The committee distinguished its opinions on judicial salaries (N.Y. State 210 and 370), which it treated separately.
Background and rules framework
The opinion applies EC 7-13 (the prosecutor's duty to seek justice) together with EC 8-8 (a public-officer lawyer avoiding conflicts with official duties) and EC 9-6 (avoiding the appearance of impropriety), concluding that salary-sharing among partners falls outside those concerns. The current Model Rule framework addresses a part-time prosecutor's conflicts under Rule 1.7 and the division of fees within a firm under Rule 5.4.
Citations and references
Rules of Professional Conduct:
- MR 1.7 (conflict of interest: current clients)
- MR 5.4 (professional independence; division of fees within a firm)
- NY EC 7-13, EC 8-8, EC 9-6
Other opinions cited:
- N.Y. State 243 (1972): part-time town attorney may share official salary with firm
- N.Y. State 223 (1971); N.Y. City 684 (1946): recognized firm membership and profit sharing
- N.Y. State 210 (1971); N.Y. State 370 (1974): judicial salaries, distinguished
See also
- NY State Bar Op. 468: Town-and-village attorney dual role
- NY State Bar Op. 1065: A part-time prosecutor's firm suing a separate village
- NY State Bar Op. 1242: Town attorney and a private client in a neighboring town
Source
- Landing page: https://nysba.org/opinion-451/
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