Can a county attorney privately represent property owners challenging their real property tax assessments?

Plain-English summary

The committee was asked whether a county attorney may represent private property owners in administrative or judicial proceedings to review real property assessments. It answered no, reaching the same result the State Board of Equalization and Assessment had reached (5 Op. Counsel SBEA 94 (1976)), though by a somewhat different analysis.

The committee applied DR 5-105, which bars undertaking or continuing employment likely to involve representing differing interests (see also EC 5-15), and EC 8-8, which admonishes lawyers holding public office, full or part-time, not to engage in activities whose professional interests are or foreseeably may conflict with their official duties (see also Canon 9). The property owner's goal in an assessment review is to reduce his real property taxes, while the county's interest is to preserve its tax base by supporting the maximum tax for the property. On that footing the interests of owner and county are adverse.

The committee addressed the objection that the county is not ordinarily a named party to an assessment review, so there is no direct adversarial relationship unless an unusual procedure is invoked. It rejected the argument: county real property taxes are levied on assessments made by municipalities within the county, and the county is bound by those determinations and intimately involved in assessment matters by statute and regulation. Citing the Court of Appeals' instruction in Rose v. Eichhorst, 42 N.Y.2d 92 (1977), that real property tax problems must be viewed against the whole legislative scheme rather than one isolated aspect, the committee concluded that any challenge to a municipality's assessment must be deemed directed not only against the assessing municipality but also against the county. The question was answered in the negative.

Currency note

This opinion was issued in 1979, before New York replaced the Code of Professional Responsibility with the Rules of Professional Conduct in 2009 (concurrent conflicts are now governed by Rule 1.7, and conflicts involving current and former 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 Treat this page as historical context, not current guidance.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: Could a county attorney privately represent a taxpayer challenging an assessment?

A: Under this opinion, no. The committee held the taxpayer's interest in lower taxes is adverse to the county's interest in its tax base, creating an improper conflict under DR 5-105 and EC 8-8.

Q: Did it matter that the county was not a named party to the assessment review?

A: No. The committee held the county is bound by municipal assessments and intimately involved in assessment matters, so a challenge to a municipal assessment is also directed against the county's interest.

Background and rules framework

The opinion applied DR 5-105 and EC 5-15 (declining employment that involves differing interests) together with EC 8-8 and Canon 9 (public officers avoiding conflicts between official duties and outside clients), read against the Real Property Tax Law's scheme. The current Model Rule analogues are Rule 1.7 (concurrent conflicts of interest) and Rule 1.11 (conflicts for current and former government officers and employees).

Citations and references

Rules of Professional Conduct:

• MR 1.7 (concurrent conflicts of interest)
• MR 1.11 (special conflicts for current and former government officers and employees)
• NY Canon 9; EC 5-15, EC 8-8; DR 5-105

Statutes:

• N.Y. Real Property Tax Law secs. 506, 507, 512(a), 900 et seq. (assessment and equalization)

Cases:

• Rose v. Eichhorst, 42 N.Y.2d 92 (1977), viewing real property tax questions against the whole statutory scheme

Other opinions cited:

• 5 Op. Counsel SBEA 94 (1976): same result reached by the State Board of Equalization and Assessment

See also

• NY State Bar Op. 506: A public lawyer taking the same matter privately
• NY State Bar Op. 510: Deputy town supervisor representing against the town
• NY State Bar Op. 501: Assistant town attorney as zoning board counsel

Source

• Landing page: https://nysba.org/opinion-504/