Can a part-time village attorney who handles prosecutions serve as a political party committeeman or circulate designating petitions for candidates?

Plain-English summary

The committee was asked whether a part-time village attorney may serve as a county committeeman for a political party and whether the attorney may collect signatures on a candidate's designating petition. It explained that its prior analyses of municipal attorneys' political activity turned on whether the attorney performs a prosecutorial function, because preserving the impartiality of the prosecutorial role requires prosecutors to avoid partisan political activity (citing N.Y. State 683 (1996) and 675 (1995)).

The committee observed that district attorneys sometimes appoint village attorneys as assistant district attorneys to prosecute village ordinance violations, with prosecutorial functions ordinarily limited to municipal code violations. It had already held that county attorneys with limited prosecutorial functions are subject to the same political-activity limits as district attorneys (N.Y. State 573 (1986)), and that town attorneys with prosecutorial functions may not serve on a party committee (N.Y. State 273 (1972)). The restriction rests on the prosecutor's special duty to seek justice and to avoid the public perception that proceedings are unfair, so prosecutors must stay above the political fray to avoid conduct prejudicial to the administration of justice under DR 1-102(A)(5) and ECs 7-13, 9-2, and 9-6.

Applying that, the committee answered both questions in the negative where the village attorney performs a prosecutorial function. Service as a party committeeman is barred, and circulating designating petitions is barred because asking voters to sign is in effect endorsing the candidate, which prosecuting attorneys may not do (with a limited exception allowing an elected prosecutor to endorse a successor). The committee noted that some associational activity is permitted, such as political contributions and limited attendance at political functions, but additional activity would risk the very perception of political influence that must be avoided. Finally, it noted that the bar does not apply to a village attorney who has no prosecutorial function or who lawfully waives it, and that it draws no distinction between part-time and full-time prosecutors.

Currency note

This opinion was issued in 1997, 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 a part-time village attorney who prosecutes serve as a party committeeman?

A: The opinion concluded no, because a prosecutorial function requires the attorney to avoid partisan political activity, including serving on a party committee.

Q: Can the attorney circulate a candidate's designating petition?

A: The opinion concluded no, reasoning that asking voters to sign a petition is in effect endorsing the candidate, which a prosecuting attorney may not do, apart from a limited exception for an elected prosecutor endorsing a successor.

Q: Does the restriction ever lift?

A: The opinion concluded the restriction applies only where the attorney performs a prosecutorial function, so a village attorney with no such role, or who lawfully waives it, would not be barred.

Background and rules framework

The opinion interpreted DR 1-102(A)(5) (conduct prejudicial to the administration of justice) of New York's former Code, together with ECs 7-13 (the prosecutor's duty to seek justice), 9-2, and 9-6 (avoiding the appearance of impropriety), applied to a part-time municipal attorney with prosecutorial duties. The Model Rule analogue is Rule 8.4(d). New York replaced the Code with the Rules of Professional Conduct in 2009; the DR number cited here is historical. (The source's digest mislabels the rule as "DR 1-101(A)(5)"; the body cites DR 1-102(A)(5).)

Citations and references

Rules of Professional Conduct:

• MR 8.4(d) (conduct prejudicial to the administration of justice)
• NY DR 1-102(A)(5); EC 7-13; EC 9-2; EC 9-6

Other opinions cited:

• N.Y. State 683 (1996): prosecutors may not engage in partisan political activity
• N.Y. State 573 (1986): county attorneys with limited prosecutorial functions
• N.Y. State 273 (1972): town attorneys with prosecutorial functions and party committees
• N.Y. State 272 (1972), 537 (1981): prosecutors and endorsing candidates

See also

• NY State Bar Op. 696: Municipal attorney and partisan political activity
• NY State Bar Op. 1071: Partisan political activity by a police-oversight agency lawyer
• NY State Bar Op. 692: Part-time legislator practicing in criminal court

Source

• Landing page: https://nysba.org/opinion-686/