Can an assistant district attorney campaign for the incumbent district attorney's re-election?

Plain-English summary

A lawyer asked whether an assistant district attorney may take part in the incumbent district attorney's re-election campaign. The committee answered no. It grounded the answer in a long line of opinions holding that there is a basic incompatibility between a prosecutor's duties and partisan politics, rooted in the prosecutor's special duty to seek justice (EC 7-13) and the need to avoid both bias and the appearance of bias in one who holds the power to recommend indictment (N.Y. State 272 (1972); N.Y. State 568 (1985)). The committee had previously held that this bar applies not only to the district attorney but also to subordinates such as assistants, because suspicion attaches to the office and it is natural to assume a subordinate acts at the superior's bidding (N.Y. State 476 (1977); EC 8-8).

The committee acknowledged it had earlier reserved whether an assistant could engage in political activity tied to a candidacy for the office of district attorney during the period the district attorney could do so. It explained that the district attorney may campaign for his or her own re-election (N.Y. State 537 (1981)), not because the concerns about public perception are weaker but out of necessity, in deference to the realities of an elective office. That rule of necessity, the committee held, does not extend to assistants: there is no necessity for an assistant to engage in partisan activity, and even the district attorney may not campaign on behalf of another candidate. Because the incumbent's campaign is not the assistant's own campaign, the assistant may not participate in it.

The committee gave concrete examples of prohibited conduct, including circulating nominating petitions, campaigning at public events, writing letters to the editor, and speaking with the media in support of the district attorney's candidacy. It concluded that the assistant may, however, make financial contributions to the district attorney's campaign committee, consistent with its prior view that contributions to a political party are permitted (N.Y. State 264 (1972)).

Currency note

This opinion was issued in 1995, under New York's former Code of Professional Responsibility, which New York replaced 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 Treat this page as historical context, not current guidance.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: Can an assistant DA campaign for the incumbent district attorney's re-election?

A: The opinion concluded no. The assistant may not circulate nominating petitions, campaign at public events, write letters to the editor, or speak to the media in support of the DA's candidacy.

Q: Why can the elected DA campaign but not the assistant?

A: The opinion concluded the district attorney may campaign for re-election out of necessity, because it is an elective office. That necessity does not apply to an assistant, and the incumbent's campaign is not the assistant's own.

Q: Can the assistant donate money to the campaign?

A: The opinion concluded yes. An assistant district attorney may make financial contributions to the district attorney's campaign committee, consistent with N.Y. State 264 (1972).

Background and rules framework

The opinion interpreted EC 7-13 (the prosecutor's duty to seek justice) and EC 8-8 (a lawyer-public officer avoiding conflicts with official duties) of New York's former Code. The closest Model Rule analogue is Rule 3.8 (special responsibilities of a prosecutor). New York replaced the Code with the Rules of Professional Conduct in 2009; the EC provisions cited here are historical. This opinion was reaffirmed and elaborated in N.Y. State 683 (1996).

Citations and references

Rules of Professional Conduct:

• MR 3.8 (special responsibilities of a prosecutor)
• NY EC 7-13; EC 8-8

Other opinions cited:

• N.Y. State 272 (1972); N.Y. State 476 (1977); N.Y. State 568 (1985): prosecutors and partisan politics
• N.Y. State 537 (1981): elected district attorney may campaign for re-election
• N.Y. State 264 (1972): political contributions permitted

See also

• NY State Bar Op. 683: Assistant DA campaign activity, reaffirmed
• NY State Bar Op. 696: Municipal attorney partisan political activity
• NY State Bar Op. 686: Part-time village attorney as a political committeeman
• NY State Bar Op. 1071: Partisan political activity by a police-oversight lawyer

Source

• Landing page: https://nysba.org/opinion-675/