Can a lawyer who serves on a county legislature defend criminal cases in that county when the legislature controls the police or DA budget, and are the lawyer's firm colleagues disqualified too?

Plain-English summary

Building on N.Y. State 692 and 702, the committee addresses a lawyer who also serves on a county legislature and wants to practice criminal law in that county. Those earlier opinions bar a lawyer/legislator from cross-examining a police officer, or being adverse to a prosecutor, who works for a county whose budget the legislature approves. The purpose is to prevent clients from gaining (or the public from suspecting) an improper advantage from retaining a part-time public official (DR 8-101(A)), and to avoid law enforcement or prosecutors handling the case with undue caution.

The committee answers three questions. First, the size of the county or its budget is irrelevant: the prohibition applies regardless of whether the legislature approves line items or a lump sum, rejecting the earlier distinction in N.Y. State 431. Second, limiting the representation to plea bargaining does not cure the conflict, because the lawyer/legislator would still investigate and interview police and bargain with the same prosecutor's office, so all the policy concerns remain.

Third, on imputation, the committee explains that since 1990 DR 5-105(D) imputes a disqualification to the whole firm only when the primary lawyer is barred under enumerated rules (DR 5-101(A), 5-105(A)/(B), 5-108, or 9-101). The lawyer/legislator's bar rests on DR 1-102(A)(5) (conduct prejudicial to the administration of justice), Canon 9, and DR 8-101(A), none of which trigger automatic imputation. So where the lawyer/legislator avoids questioning police, opposing covered DAs, or matters conflicting with legislative duties, the firm's other lawyers are not per se disqualified. But imputation may still be appropriate where the public is likely to suspect the legislator's influence, most likely when the lawyer/legislator is prominent (for example, a party leader) or the case is prominent. The committee adds that screening does not prevent imputation where it does apply, because New York generally does not recognize screening outside the former-government-employee context of DR 9-101(B)(1)(a).

In practice

The opinion holds, under the former Code as it stood at the time, that a lawyer/county legislator may not undertake criminal representations involving police or prosecutors whose budget or appointments the legislature controls, that county or budget size is irrelevant, and that limiting the work to plea bargaining does not avoid the bar. On imputation, the committee concludes the firm's other lawyers are not automatically disqualified because the legislator's bar rests on DR 1-102(A)(5), Canon 9, and DR 8-101(A) rather than the rules enumerated in DR 5-105(D); imputation may nonetheless apply on the facts where the public would likely suspect the legislator's influence, and screening will not defeat imputation where it applies.

Common questions

Q: Can a lawyer on a county legislature defend criminal cases in that county?

A: Not where the case involves police or a district attorney's office whose budget or appointments the legislature controls. The committee concludes the lawyer/legislator is disqualified from such matters to avoid both improper advantage and the appearance of it.

Q: Does it matter that the county and its budget are large?

A: No. The committee concludes the size of the county or budget is irrelevant and applies the bar whether the legislature approves line items or a lump sum.

Q: Can the lawyer/legislator take the case if it is only plea bargaining?

A: No. The committee reasons that plea bargaining still requires investigating and interviewing police and bargaining with the same prosecutor's office, so the conflict is not cured by limiting the scope.

Q: Are the legislator's law firm colleagues disqualified too?

A: Not automatically. Because the legislator's bar rests on rules outside DR 5-105(D)'s enumerated list, there is no per se imputation, though the committee says imputation may apply where the public would likely suspect the legislator's influence, and screening will not prevent it where it applies.

Background and rules framework

The opinion interprets the former Code's bar on conduct prejudicial to the administration of justice, DR 1-102(A)(5) (an analogue of ABA Model Rule 8.4(d)), the misuse-of-public-position rule DR 8-101(A) and Canon 9, the own-interest conflict rule DR 5-101(A) (Model Rule 1.7), and the imputation rule DR 5-105(D) (Model Rule 1.10), along with DR 9-101(B)(1)(a) on screening of former government employees.

Citations and references

Rules of Professional Conduct:

• MR 1.7 (concurrent and own-interest conflicts)
• MR 1.10 (imputation of conflicts within a firm)
• MR 8.4(d) (conduct prejudicial to the administration of justice)
• Former Code DR 1-102(A)(5); DR 5-101(A); DR 5-105(D); DR 8-101(A); Canon 9; DR 9-101(B)(1)(a)

Other opinions cited:

• N.Y. State 692 (1997) and 702 (1998): a lawyer/legislator may not be adverse to police or prosecutors the legislature funds
• N.Y. State 431 (1976): line-item versus lump-sum distinction, rejected in N.Y. State 692
• N.Y. State 773 (2004): when a lawyer/public official's disqualification is imputed to a firm

See also

• NY State Bar Op. 800: Part-time prosecutor as assigned Family Court counsel
• NY State Bar Op. 1065: Part-time prosecutor's firm suing a separate village
• NY State Bar Op. 1071: Partisan political activity by a police oversight lawyer

Source

• Landing page: https://nysba.org/ethics-opinion-798/