Can a part-time county legislator accept Family Court appointments as attorney for the child when the legislature funds the county attorney and social services offices?

Plain-English summary

The question is whether a part-time county legislator, whose legislature approves funding and appointments for both the county attorney's office and the office of counsel for the county department of social services, may accept Family Court appointments to serve as attorney for the child (formerly law guardian) in juvenile delinquency, PINS, neglect, or abuse proceedings. The opinion answers no.

The opinion draws on its prior decisions that a lawyer/legislator may not represent criminal defendants in cases involving a police department or district attorney's office over which the legislature has budget or appointment authority, citing N.Y. State 798 (2006) and N.Y. State 692 (1997), and notes the prohibition applies even if the legislator abstains from all related budget votes (N.Y. State 702 (1998)). It explains that the governing language of former DR 1-102(A)(5) and DR 8-101(A)(2) carried forward unchanged into Rules 8.4(d) (conduct prejudicial to the administration of justice) and 1.11(f)(2) (a lawyer who is a public official shall not use the position to influence a tribunal in favor of the lawyer or a client).

For delinquency and PINS proceedings, the opinion finds the rules apply with equal force for three reasons: the attorney-for-the-child role is the functional equivalent of criminal defense counsel, the child's liberty is at stake, and the legislator would be adverse to the county attorney's office regardless of whether the legislator actually cross-examines county personnel. The opinion acknowledges that neglect and abuse cases differ, because the attorney for the child may sometimes take the same position as the county attorney or social services. Even so, it reaches the same prohibition for two reasons it weighs equally: first, the public may perceive that the legislator receives favored treatment from the offices the legislature funds, a perception not dissipated (and perhaps reinforced) when those offices agree with the legislator; second, beyond perception, there is an unacceptable risk that the county attorney or social services will actually compromise their independence and adjust their positions to conform to the legislator's views, to curry favor or avoid retaliation over budget and appointment requests.

The opinion concludes in the negative: it is not ethically permissible for a county legislator to accept Family Court appointments as attorney for the child in juvenile delinquency, PINS, or neglect and abuse proceedings.

In practice

Under this opinion, a lawyer who serves as a county legislator cannot take Family Court appointments as attorney for the child in delinquency, PINS, neglect, or abuse cases where the legislature funds or appoints the county attorney and social services offices opposing that representation. The opinion holds the bar applies even when the legislator would abstain from related budget votes, and even in neglect and abuse cases where the legislator's position might align with the county offices, because of both the appearance of favored treatment and the real risk that those offices compromise their independence.

Common questions

Q: Can a county legislator be appointed attorney for the child in Family Court?

A: No, where the legislature funds or appoints the opposing county offices. The opinion concludes Rules 8.4(d) and 1.11(f)(2) prohibit a county legislator from accepting such appointments in delinquency, PINS, neglect, or abuse proceedings.

Q: Does it help if the legislator abstains from votes on the county attorney's budget?

A: No. The opinion, following N.Y. State 702 (1998), states the prohibition applies even if the legislator abstains from all related budget votes.

Q: Why are neglect and abuse cases treated the same as delinquency cases here?

A: The opinion concludes the same bar applies because of the public perception of favored treatment toward the legislator and the real risk that the county attorney or social services will adjust their positions to conform to the legislator's views, even when their positions might otherwise align.

Background and rules framework

The opinion interprets New York Rule 8.4(d) (Model Rule 8.4(d), conduct prejudicial to the administration of justice) and Rule 1.11(f)(2), a New York provision (related to Model Rule 1.11 on government lawyers) barring a lawyer who is a public officer from using the public position to influence a tribunal to act in favor of the lawyer or a client. The opinion treats these as the unchanged successors to former DR 1-102(A)(5) and DR 8-101(A)(2), and applies the established lawyer/legislator conflict line to Family Court attorney-for-the-child appointments.

Citations and references

Rules of Professional Conduct:

• MR 8.4 (misconduct)
• MR 1.11 (special conflicts for former and current government officers)
• NY Rule 8.4(d) (conduct prejudicial to the administration of justice)
• NY Rule 1.11(f)(2) (public official not using position to influence a tribunal)
• Former DR 1-102(A)(5); DR 8-101(A)(2)

Other opinions cited:

• N.Y. State 798 (2006); N.Y. State 692 (1997): lawyer/legislator may not represent defendants against county-funded police or DA offices
• N.Y. State 702 (1998): prohibition applies even with abstention from related budget votes

See also

• NY State Bar Op. 859: Part-time government attorneys' conflicts of interest
• NY State Bar Op. 862: Imputed conflict of interest in a public defender office
• NY State Bar Op. 874: Part-time prosecutor's representation of criminal defendants

Source

• Landing page: https://nysba.org/ethics-opinion-844/