Can a part-time city attorney with prosecutorial duties stay in the role when his law partner becomes chair of a local political committee?
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This page answers the general question as of 1979. 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 restated a view it had long embraced: a basic incompatibility exists between the duties of a public prosecutor and partisan politics (citing a string of its own opinions, including N.Y. State 476, 273, 272, 264, 241, and 217). That view rests on the Code's Ethical Considerations rather than its Disciplinary Rules, and reflects the prosecutor's unique role under EC 7-13 to seek justice rather than merely to convict, using restraint in the discretionary exercise of governmental power. The potential for conflict between a lawyer's personal or political interests and his official duties (EC 8-8), and the directives that a lawyer act to promote public confidence and avoid even the appearance of impropriety (EC 9-2, EC 9-6), reinforced the conclusion.
The committee noted its prior opinions aimed to eliminate any suspicion that a prosecutor's broad discretion might be abused for partisan reasons, and that prosecutors who take an active part in politics risk public disenchantment with the judicial system (quoting N.Y. State 272 and citing ABA 192). Although those opinions addressed the prosecutor's own political activities, the committee held their rationale applies equally to the political activities of the prosecutor's partner.
The committee found the appearance of impropriety is not substantially lessened when the political activities belong to the partner; if anything, the appearance may be enhanced and the prosecutor's motives made more suspect by the implication that the partnership is an attempt to evade the prohibition on the prosecutor's own political involvement. 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, on which this opinion partly rested, was not carried forward into the Rules of Professional Conduct; the concurrent-conflict and partner-imputation concepts now appear at Rules 1.7 and 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: Could a part-time city prosecutor keep the job when his partner chaired a political committee?
A: No. The committee held the incompatibility between prosecution and partisan politics extends to a partner's political role, so the prosecutor could not continue.
Q: Why does a partner's politics affect the prosecutor?
A: The committee found the appearance of impropriety is not lessened, and may be heightened, when the political activity is the partner's, because it suggests an attempt to evade the bar on the prosecutor's own political involvement.
Q: What was the source of the incompatibility rule?
A: The committee drew it from the Code's Ethical Considerations (EC 7-13, 8-8, 9-2, 9-6) and a line of its own prior opinions, not from a specific Disciplinary Rule.
Background and rules framework
The opinion rested on the Ethical Considerations describing the prosecutor's special role and the duty to avoid the appearance of impropriety (EC 7-13, 8-8, 9-2, 9-6), with DR 5-105(A) and (D) bearing on conflicts and their imputation within a firm. The closest current Model Rule analogues are Rule 1.7 (concurrent conflicts of interest) and Rule 1.10 (imputation of conflicts within a firm).
Citations and references
Rules of Professional Conduct:
- MR 1.7 (concurrent conflicts)
- MR 1.10 (imputed disqualification)
- NY EC 5-21, EC 7-13, EC 7-31, EC 8-8, EC 9-2, EC 9-6, DR 5-105(A), (D)
Other opinions cited:
- N.Y. State 476 (1977): prosecutor's discretion must be free of partisan suspicion
- N.Y. State 272 (1972): prosecutors active in politics risk public disenchantment
- N.Y. State 511 (1979) and 502 (1979): related disqualification opinions
- ABA 192 (1939): a public-office lawyer should avoid using the office for personal gain
See also
- NY State Bar Op. 526: Part-time assistant DA and probation officer
- NY State Bar Op. 510: Deputy town supervisor representing clients against the town
Source
- Landing page: https://nysba.org/opinion-513/
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