Can a lawyer who serves on a county legislature still practice criminal defense in that county if the lawyer abstains from voting on the DA's budget and discloses that?

Plain-English summary

The committee had held in N.Y. State 692 (1997) that it is prejudicial to the administration of justice for a lawyer-legislator to be adverse to a prosecutor or to cross-examine officers from a police department whose budget or appointments the legislature controls. A member of a county legislature who practiced criminal law in that county asked whether the proscription would still apply if the lawyer abstained from all votes on the district attorney's budget and publicly disclosed that intention. The committee concluded it would.

The committee explained that the two purposes behind disqualifying part-time public officials are to prevent private clients from retaining the official hoping for an improper advantage from the public office, and to prevent public suspicion that a client gains such an advantage. A public disclosure of an intent not to vote on the DA's budget would not adequately address either concern. It is membership in the legislature and the influence that membership carries over the body's deliberations, not any single budget vote, that might induce a client to retain the lawyer-legislator hoping for an advantage; and personal abstention from the budget vote could not by itself prevent public suspicion of advantage.

The committee added that the public could reasonably conclude a prosecutor whose budget is fixed by the legislature is to some degree beholden to a legislator appearing as defense counsel, despite a disavowal of the budget vote, and that recusal could also fail to cure the potential conflicts between the legislator's official duties or political objectives and the lawyer's obligations to a client. Quoting N.Y. State 660 (1994), it noted that "where the matter relates to the criminal justice system, consent usually is unavailing." It therefore held DR 1-102(A)(5) and ECs 8-8 and 9-6 compelled the same result as in N.Y. State 692.

Currency note

This opinion was issued in 1998, 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 Treat this page as historical context, not current guidance.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 county legislator practice criminal defense in the same county?

A: The opinion concluded no, where the legislature exercises budgetary or appointment authority over the district attorney or a police department; the prior opinion N.Y. State 692 barred it as prejudicial to the administration of justice.

Q: Does abstaining from votes on the DA's budget fix the problem?

A: The opinion concluded no. It is membership in the legislature and its influence, not any single vote, that raises the concern, and abstention plus disclosure cannot eliminate the public suspicion of improper advantage.

Q: Can the client just consent to the arrangement?

A: The opinion noted that where the matter relates to the criminal justice system, consent is usually unavailing, quoting N.Y. State 660.

Background and rules framework

The opinion interpreted DR 1-102(A)(5) (conduct prejudicial to the administration of justice) together with EC 8-8 and EC 9-6 of New York's former Code of Professional Responsibility, applied to a part-time public official. The Model Rule analogue is Rule 8.4(d) (conduct prejudicial to the administration of justice). New York replaced the Code with the Rules of Professional Conduct in 2009; the DR number cited here is historical.

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 8-8; EC 9-6

Other opinions cited:

• N.Y. State 692 (1997): a lawyer-legislator may not practice criminal law where the legislature controls the DA's or police budget
• N.Y. State 660 (1994): consent usually unavailing in criminal-justice matters
• N.Y. State 418 (1975): county legislator opposing the county attorney

See also

• NY State Bar Op. 701: Part-time judge whose co-counsel appears in the judge's court
• NY State Bar Op. 725: Assistant DA appearing before a sibling Town Justice

Source

• Landing page: https://nysba.org/opinion-702/