Can a deputy town supervisor represent private clients in tax or other litigation against the town?

Plain-English summary

The committee rejected the argument that a deputy supervisor should be free to sue the town because he supposedly cannot set municipal policy. It explained that a deputy supervisor's powers, though largely administrative, extend well beyond presiding over board meetings: under Town Law section 42 the deputy takes over all the supervisor's duties during the supervisor's absence, inability to act, or a vacancy, and even without a vote he may participate in board discussion and influence the disposition of litigation concerning the town.

Because the deputy is charged with preserving the town's funds, representing a private client seeking to reduce taxes, obtain a judgment against the town, or defeat the town's judgment would place his duty to the client in conflict with his duty to the town, a conflict to be avoided (citing N.Y. State 504 and 392, EC 8-8, and DR 8-101(A)(2)). Even where the conflict was less direct, the committee said the deputy must avoid the appearance of impropriety that would inevitably arise (Canon 9, EC 9-2, EC 9-6); retaining a deputy supervisor against the town's interests is highly suggestive of an improper motive and invites public suspicion that his office influenced the result.

The committee tied the conclusion to the two purposes its earlier opinions had identified for disqualifying part-time public officials (quoting N.Y. State 431 and 435): preventing private clients from gaining an improper advantage through the lawyer's office, and preventing public suspicion that they have. It held that the technical distinction between supervisor and deputy, and the deputy's inability to vote, do not justify departing from those principles. 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. Canon 9's "appearance of impropriety" standard was not carried forward into the Rules of Professional Conduct; the conflict and public-office concerns now appear at Rules 1.7 and 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 Treat this page as historical context, not current guidance.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 deputy town supervisor sue the town for private clients?

A: No. The committee held a deputy town supervisor may not represent private clients in tax certiorari or other litigation against the town, because his public duty to protect the town conflicts with that representation.

Q: Does it matter that the deputy has no vote on the town board?

A: No. The committee found the deputy still participates in and can influence the board's handling of litigation, so the lack of a vote does not cure the conflict or the appearance of impropriety.

Q: What harm is the rule meant to prevent?

A: Both a client gaining an improper advantage through the lawyer's public office and the public's suspicion that the client has, drawing on the committee's earlier opinions on part-time public officials.

Background and rules framework

The opinion applied EC 8-8 and DR 8-101(A)(2) (not using public position for a client's advantage) together with Canon 9, EC 9-2, and EC 9-6 (appearance of impropriety) to a deputy town supervisor's private practice against the town. The closest current Model Rule analogues are Rule 1.7 (concurrent conflicts of interest) and Rule 1.11 (conflicts for current and former government officers).

Citations and references

Rules of Professional Conduct:

• MR 1.7 (concurrent conflicts)
• MR 1.11 (government officers and employees)
• NY Canon 9, EC 8-8, EC 9-2, EC 9-6, DR 8-101(A)(2)

Statutes:

• N.Y. Town Law sec. 42 (deputy supervisor's powers)

Other opinions cited:

• N.Y. State 431 (1976) and 435 (1976): purposes of disqualifying part-time public officials
• N.Y. State 504 (1979) and 392 (1975): conflicts in public-official private practice

See also

• NY State Bar Op. 518: Part-time public defender suing the county
• NY State Bar Op. 526: Part-time assistant DA and probation officer

Source

• Landing page: https://nysba.org/opinion-510/