Can a lawyer who serves as a tax-assessment hearing officer, or others in his firm, represent private clients in those same proceedings?

Plain-English summary

The committee considered New York's Special Proceeding for Small Claims Real Property Tax Assessment Review, effective January 1, 1982, in which hearing officers review decisions of Boards of Assessment Review where the tax reduction at issue does not exceed $750. The question was whether an attorney serving as such a hearing officer, or other lawyers in his firm, could represent private clients in those proceedings in the same jurisdiction where the officer sits.

The committee distinguished its earlier opinion N.Y. State 380 (1975), which allowed an attorney who occasionally acts as an arbitrator in a local small-claims court to practice before the same part, on the ground that arbitration there involved two private parties. Here, by contrast, one party in every assessment review is a governmental entity, the tax assessor. The committee aligned the case with N.Y. State 365 (1974), which subjected a lawyer-member of the Motor Vehicle Department's Administrative Appeals Board to the same restrictions as a judge and barred his firm from representing private clients against the Department, and with N.Y. State 292 (1973) on a zoning appeals board member.

The committee reasoned that the hearing officer renders impartial judgments reviewing local assessors, while a lawyer representing private landowners would be an advocate challenging such decisions, and the interests of private clients could conflict with decisions an impartial officer must reach. To protect the integrity and impartiality of the review process (EC 8-8), the officer cannot accept such professional employment, and under DR 5-105(D) neither can a partner or associate in his firm. The committee limited the restriction to the county or counties where the attorney serves and to tax-assessment matters there, citing N.Y. State 484 (1978). The question was answered in the negative.

Currency note

This opinion was issued in 1982, before New York replaced the Code of Professional Responsibility with the Rules of Professional Conduct in 2009 (limits on lawyers who have served as adjudicative officers now appear at Rule 1.12, and imputation to a firm at 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 Treat this page as historical context, not current guidance.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: Can a lawyer who sits as a tax-assessment hearing officer also represent taxpayers in those proceedings?

A: No. The committee held the officer renders impartial judgments and cannot also act as an advocate challenging assessor decisions in the same county.

Q: Does the restriction extend to the lawyer's partners and associates?

A: Yes. Under DR 5-105(D), if the hearing officer cannot accept the employment, neither can a partner or associate in his firm.

Q: Is this different from an attorney who serves as an arbitrator?

A: Yes. The committee distinguished N.Y. State 380 (1975), where the arbitration involved two private parties, because here one party is always a governmental entity.

Background and rules framework

The opinion applied EC 8-8 (a lawyer holding public office) and DR 5-105(D) (imputation of one lawyer's disqualification to the firm) to a lawyer serving in a quasi-judicial role reviewing governmental assessment decisions. The closest current Model Rule analogues are Rule 1.12 (former judge, arbitrator, mediator, or other third-party neutral) and Rule 1.10 (imputation of conflicts within a firm).

Citations and references

Rules of Professional Conduct:

• MR 1.12 (former adjudicative officer)
• MR 1.10 (imputation of conflicts)
• NY DR 5-105(D), EC 8-8

Other opinions cited:

• N.Y. State 365 (1974): Motor Vehicle Administrative Appeals Board member treated as a judge
• N.Y. State 380 (1975): arbitrator in a private small-claims matter, distinguished
• N.Y. State 484 (1978): geographic scope of the restriction

See also

• NY State Bar Op. 571: Board attorney also serving as town justice
• NY State Bar Op. 548: Lawyer appearing before a judge who employs the lawyer's spouse

Source

• Landing page: https://nysba.org/opinion-543/