Ezel / Ethics Opinions / NYSBA
NYSBA 1996

Can an assistant district attorney work on the campaign to re-elect their boss, the incumbent district attorney?

Short answer: The opinion reaffirmed N.Y. State 675: an assistant district attorney may not actively participate in the incumbent district attorney's reelection campaign, because partisan political activity is incompatible with the prosecutor's duty to seek justice impartially.

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This page answers the general question as of 1996. Ezel answers yours: whether it's allowed on your facts, under the current New York Rules of Professional Conduct, with citations.

Currency note: this opinion is from 1996
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
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 Not binding precedent.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

After the committee held in N.Y. State 675 (1995) that an assistant district attorney may not work on the incumbent district attorney's reelection campaign, the New York State District Attorneys Association asked it to reconsider. The committee met with the Association's representatives, considered their views, and adhered to its prior conclusion, using this opinion to elaborate on the reasoning.

The committee grounded the rule in the prosecutor's duty to "seek justice" (EC 7-13), a quasi-judicial function that sets prosecutors apart from lawyers representing private clients. Because the prosecutor acts for the sovereign and wields extraordinary powers (charging decisions, grand jury compulsion, search and arrest warrants, immunity grants, plea bargaining), the office carries a responsibility not only to ensure that criminal proceedings are fair but also to avoid the public perception that they are unfair. The committee distinguished N.Y. State 537 (1981), which allowed an elected district attorney to campaign because an elected official must of necessity run for reelection; it found no comparable necessity for assistants to take part in their superior's partisan campaign.

The committee concluded that an assistant district attorney's active participation in the incumbent's reelection effort would undermine the assistant's ability to exercise prosecutorial discretion impartially and would risk the appearance that charging and plea decisions are driven by partisan loyalty rather than justice. It accordingly answered that such participation remains improper.

Currency note

This opinion was issued in 1996, 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 reelection?

A: The opinion concluded no. It reaffirmed N.Y. State 675, holding that active participation in the incumbent's reelection campaign is incompatible with the assistant's duty to seek justice impartially.

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

A: The opinion distinguished N.Y. State 537 (1981): an elected district attorney must necessarily run for reelection, but the committee found no comparable necessity for assistants to take part in their superior's partisan campaign.

Q: What rule or duty does the bar on partisan activity rest on?

A: The opinion rested it on the prosecutor's special duty to seek justice (EC 7-13) and the need to avoid both partiality and the appearance of partiality, given the extraordinary powers a prosecutor's office exercises.

Background and rules framework

The opinion interpreted EC 7-13 (the prosecutor's duty to seek justice), EC 8-8, EC 5-2, DR 1-102(A)(5) (conduct prejudicial to the administration of justice), and DR 5-101(A) (personal-interest conflicts) of New York's former Code. The closest Model Rule analogue is Rule 3.8 (special responsibilities of a prosecutor), whose comment describes the prosecutor as a "minister of justice," together with Rule 1.7 (conflicts of interest). New York replaced the Code with the Rules of Professional Conduct in 2009; the DR numbers cited here are historical.

Citations and references

Rules of Professional Conduct:

  • MR 3.8 (special responsibilities of a prosecutor)
  • MR 1.7 (conflict of interest: current clients)
  • NY DR 1-102(A)(5); DR 5-101(A); EC 5-2; EC 7-13; EC 8-8

Other opinions cited:

  • N.Y. State 675 (1995): the underlying opinion this one affirms
  • N.Y. State 537 (1981): elected district attorney may engage in reelection political activity

See also

Source

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