Can an assistant county attorney who has no personal prosecutorial duties be an active member of a political club?

Plain-English summary

The office of county attorney is vested with various prosecutorial duties, and the duties of individual assistant county attorneys are set by the county attorney. The committee was asked whether an assistant county attorney who personally has no prosecutorial duties may be an active member of a political club. It answered no.

The committee restated its long-held position that the lawyer staff of a public office with prosecutorial duties is ethically precluded from active membership in political organizations (N.Y. State 272 (1972); N.Y. State 264 (1972); N.Y. State 241 (1972); N.Y. State 217 (1971)). The rule rests on the ethical considerations in EC 7-13, EC 8-8, EC 9-2 and EC 9-6 and is meant to eliminate any suspicion that a prosecutor's broad discretion might be abused for partisan reasons.

The committee acknowledged the exception it had recognized in N.Y. State 273 (1972): where an office (there, a town attorney) is granted authority in criminal matters but by custom and long practice does not use it, the appearance of impropriety is substantially reduced or eliminated, and the lawyer could "waive" all prosecutorial duties and serve on a political committee if not otherwise prohibited by law. But the committee stressed that the gravamen of that exception relates to the activities of the office, not of one staff member. Where the prosecutorial duties are actually exercised by the office, the suspicion attaches to the office, and it is natural to assume a subordinate acts at the superior's bidding; for purposes of DR 5-105(D), public offices exercising prosecutorial duties are treated like private law firms so that the disqualification is imputed across the staff (N.Y. State 419 (1975)).

Applying those principles, the committee found that the fact that the assistant county attorney did not personally exercise the office's prosecutorial duties was insufficient to justify active participation in partisan politics. 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. The Model Rules dropped the former Canon 9 "appearance of impropriety" standard the opinion relied on, and imputation is now addressed by Rule 1.10. 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: Does having no prosecutorial duties let an assistant county attorney join a political club?

A: Under this opinion, no. The committee held the prosecutorial character of the office attaches to its whole lawyer staff, so the individual assistant's lack of prosecutorial duties did not justify active political-club membership.

Q: Why does the office's role matter more than the individual's?

A: The committee said the suspicion of partisan abuse attaches to the office, and it is natural to assume a subordinate acts at the superior's bidding; under DR 5-105(D) the office is treated like a private firm so the disqualification is imputed across staff.

Q: When does the exception in N.Y. State 273 apply?

A: When the office itself, by custom and long practice, does not exercise its criminal-prosecution authority, so the appearance of impropriety is substantially reduced. The committee held the exception turns on the office's activities, not a single staffer's duties.

Background and rules framework

The opinion applies the former Canon 9 appearance-of-impropriety considerations (EC 9-2, EC 9-6) together with EC 7-13 (duties of a public prosecutor) and EC 8-8 (lawyers holding public office), and uses DR 5-105(D) to impute disqualification across a prosecutorial office's staff. The closest current Model Rule is Rule 1.10 (imputation of conflicts); Rule 8.4 addresses misconduct generally. The Model Rules no longer carry the appearance-of-impropriety standard the opinion turned on.

Citations and references

Rules of Professional Conduct:

• MR 1.10 (imputation of conflicts of interest)
• MR 8.4 (misconduct)
• NY EC 7-13, EC 8-8, EC 9-2, EC 9-6; DR 5-105(D)

Other opinions cited:

• N.Y. State 273 (1972): the office-activity exception for an office that does not use its criminal authority (clarified by this opinion)
• N.Y. State 419 (1975): treating a prosecutorial public office like a private firm for DR 5-105(D)
• N.Y. State 272, 264, 241 (1972); N.Y. State 217 (1971): prosecutorial staff barred from active political-organization membership

See also

• NY State Bar Op. 492: A part-time DA prosecuting a former private client
• NY State Bar Op. 484: A zoning-board member's firm practicing before town agencies

Source

• Landing page: https://nysba.org/opinion-476/