Can a part-time city attorney appear before a city agency to advance his own real estate purchase?

Plain-English summary

A part-time city attorney wanted to buy a building scheduled for demolition under the city's urban renewal plan. He did not advise the urban renewal agency itself, but he served as legal adviser to the mayor (who chaired the agency) and the common council (which by law had to approve the sale of all urban-renewal property). The committee was asked whether he could appear before the agency to obtain a modification of the plan that would let him buy the building. It answered no.

The committee relied on its earlier opinions barring city officials from representing private clients before urban renewal agencies. In N.Y. State 110 (1969) it had held it improper for a city councilman to represent private property owners in condemnation proceedings before the agency where the council approved agency projects and mayoral appointments to it, and in N.Y. State 111 (1969) that a lawyer could not do title work for the agency while representing private owners in unrelated condemnation cases. The gravamen of both was that the nature of the lawyer's public duties gave the appearance of influence over the agency's work, so he could not accept private employment requiring agency action. Though decided before the Code, those views remained valid and were reinforced by EC 5-2, EC 5-3 and EC 8-8.

The committee said the fact that the attorney did not represent or advise the agency itself was not determinative; if his public duties give the appearance of influence over the agency's deliberations, that alone precludes him from representing private parties and, even more so, from advancing his own personal interests before the agency. Because his official duties included advising both the agency's chairman and the council that would have to approve the sale, the committee found the spectre of undue influence inescapable (Canon 9). The question was answered in the negative.

Currency note

This opinion was issued in 1977, before New York replaced the Code of Professional Responsibility with the Rules of Professional Conduct in 2009 (conflicts of a current government lawyer are now addressed through Rule 1.7 and Rule 1.11, and business dealings touching a client through Rule 1.8). The Model Rules also no longer carry the former Canon 9 appearance-of-impropriety standard the opinion turned on. 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 municipal lawyer appear before a city agency on his own behalf?

A: Under this opinion, not where his public duties give the appearance of influence over that agency. The committee held the city attorney could not appear before the urban renewal agency to advance his own purchase.

Q: Does it matter that he did not advise the agency itself?

A: No. The committee held that advising the agency directly was not required; advising the mayor who chaired it and the council that had to approve the sale was enough to create the appearance of influence.

Q: Was the rule different because he was acting for himself rather than a client?

A: The committee treated self-interested appearances as worse, saying the bar on representing private parties applies a fortiori to advancing the lawyer's own personal interests before the agency.

Background and rules framework

The opinion applies the former Canon 9 appearance-of-impropriety standard with EC 5-2 and EC 5-3 (independent judgment free of personal interest) and EC 8-8 (lawyers holding public office), and cites DR 5-104(A) on business dealings adverse to a client. The current Model Rule analogues are Rule 1.11 (conflicts for current and former government lawyers), Rule 1.7 (personal-interest conflicts), and Rule 1.8 (business transactions).

Citations and references

Rules of Professional Conduct:

• MR 1.11 (special conflicts for government officers and employees)
• MR 1.7 (conflict of interest: current clients)
• MR 1.8 (business transactions adverse to a client)
• NY Canon 9; EC 5-2, EC 5-3, EC 8-8; DR 5-104(A)

Other opinions cited:

• N.Y. State 110 (1969); N.Y. State 111 (1969): city officials barred from private work before the urban renewal agency
• ABA Inf. 691 (1963)

See also

• NY State Bar Op. 476: Political activity by an assistant county attorney
• NY State Bar Op. 484: A zoning-board member's firm practicing before town agencies

Source

• Landing page: https://nysba.org/opinion-470/