NYSBA January 7, 1986

When may a New York district attorney or assistant DA attend a political party's functions?

Short answer: The opinion concluded that a district attorney who is not involved in his own re-election campaign may attend a political party's political or social functions, as a paying or invited guest, only in limited circumstances; it modified the flat per se ban of N.Y. State 568, and extended the same proscriptions to assistant district attorneys and to county attorneys and their assistants.

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This page answers the general question as of 1986. Ezel answers yours: whether it's allowed on your facts, under the current New York Rules of Professional Conduct, with citations.

Disclaimer: Advisory only. Not binding precedent.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page) is the authoritative source for any reliance.

Plain-English summary

The committee was asked when a district attorney or assistants may attend a political or social function of a political party, and whether the same standards apply to county attorneys and their assistants. The question arose because N.Y. State 568 (1985) had concluded it was improper for a district attorney to attend such functions except while running in his own re-election campaign, and applied that proscription to assistants and, implicitly, to others exercising prosecutorial duties. The District Attorneys Association and the New York State Association of County Attorneys both urged reconsideration, and each adopted its own code of conduct on the subject; the District Attorneys rejected N.Y. State 568 in part, the County Attorneys in whole.

A majority of the committee decided to modify N.Y. State 568. It reaffirmed the long-standing view that a prosecutor's duties are in major respects incompatible with partisan political activity, and that the central concern is appearance, the danger that the public will perceive that political considerations affect prosecutorial decisions; it had filled the gap in the Code by analogizing prosecutors to judges. But it accepted three points: the office of district attorney is elective, so some minimum level of political association must be permitted, particularly because election opponents may freely engage in it; there is no objective criterion for drawing bright lines, so the judgment is necessarily imprecise; and the committee was reluctant to ground a per se rule on a factual premise, about how mere attendance affects public perception, on which reasonable people may differ. It therefore relaxed the flat ban, allowing attendance as a paying or invited guest in limited circumstances rather than prohibiting it outright. The committee applied the same modified proscriptions to assistant district attorneys, and held that N.Y. State 568, as modified, applies to county attorneys and their assistants as well.

Currency note

This opinion was issued in 1986, before New York replaced the Code of Professional Responsibility with the Rules of Professional Conduct in 2009. 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: May a district attorney attend a political party's functions?

A: In limited circumstances. The committee modified the earlier flat ban and held a district attorney not running in his own campaign may attend, as a paying or invited guest, in limited circumstances, rather than being barred outright.

Q: Does this change N.Y. State 568?

A: Yes. The committee expressly modified N.Y. State 568's per se prohibition, while reaffirming the broader limits on prosecutors' partisan political activity.

Q: Do the same standards apply to assistants and county attorneys?

A: Yes. The committee applied the modified proscriptions to assistant district attorneys and to county attorneys and their assistants.

Background and rules framework

The opinion rested on Canon 9's concern with the appearance of impropriety and Ethical Considerations including EC 7-13 and EC 8-8, applying to prosecutors by analogy to the restrictions on judges' political activity. The closest current Model Rule analogue for prosecutorial conduct generally is Rule 8.4 (misconduct), though the opinion's political-activity analysis is specific to the prosecutor's role. It modified N.Y. State 568 (1985).

Citations and references

Rules of Professional Conduct:

MR 8.4 (misconduct)
NY Canon 9 (appearance of impropriety); EC 7-13; EC 8-8

Other opinions cited:

N.Y. State 568 (1985): flat ban on prosecutors attending political functions (modified here)
N.Y. State 552 (1983): prosecutors' special duty and the appearance of impropriety

Source

Landing page: https://nysba.org/opinion-573/

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