Ethics Opinion 1065

Ethics Opinion 1065

7.11.2015

By Committee on Professional Ethics

New York State Bar Association
Committee on Professional Ethics

Opinion 1065 (7/10/15)
Topic: Imputed Conflicts of Interest; Part-time Prosecutor
Digest: The law firm of a part-time prosecutor for Town may represent a client in an Article 78 proceeding against Village, involving actions of Village zoning board or Village planning board, where (i) the Town and Village are separate legal entities and have separate legal departments, (ii) the Town Attorney and his or her staff, including the part-time prosecutor, have no responsibility for prosecuting Village zoning and planning  laws, and (iii) the proceeding would not involve Village law enforcement personnel, even though the Town and Village courts have been merged and the Village provides police protection services to both the Village and Town.
Rules: 1.7(a), 1.10(a), 1.11(f)

FACTS

1. The inquirer is an attorney in private practice and a part-time Deputy Town Attorney.  As Deputy Town Attorney, his duties include prosecuting violations of the Town Code and Vehicle and Traffic Law (including prosecuting traffic violations written primarily by the Village police force), assisting the Town Council in drafting and interpreting its statutes, and providing legal advice to the Town.  The Village has its own Village Prosecutor who is responsible for prosecuting Village zoning laws, building codes and the Village Code, and is supervised by Corporation Counsel.  The Town’s attorneys, including inquirer, have no responsibilities relating to Village zoning or planning laws.  The scope of the Village Prosecutor’s work on behalf of the Village is entirely distinct from the scope of the Town Attorney’s work on behalf of the Town, and the Town and Village are distinct legal entities.  However, the Town and Village have an inter-municipal agreement, which has, in effect, merged the Town and Village courts, and under another such agreement the Village provides police protection services to the Village and Town.
2. The inquirer’s firm was asked to represent an individual in an Article 78 proceeding against the Village based upon allegedly improper actions taken by the zoning board or the planning board.  The inquirer asks if there is any conflict of interest in his firm’s representation of the plaintiff against the Village.

QUESTION

3. May the law firm of a part-time prosecutor for a Town represent a client in an Article 78 proceeding against a Village to challenge actions of the Village zoning board or Village planning board where the town and village are separate legal entities and have separate legal departments and the Town Attorney and his or her staff, including the part-time prosecutor, have no responsibility for prosecuting Village zoning or planning laws, even though the Town and Village courts have been merged and the Village provides police protection services to both the Village and Town?

OPINION

4. This Committee interprets the New York Rules of Professional Conduct (the “Rules”).  We assume for purposes of this opinion that the proposed representation would not violate any applicable law governing Town officers and their firms.  We express no opinion on that issue and urge the inquirer to verify our assumption.
5. Rule 1.7(a) prohibits concurrent representations where a reasonable attorney would conclude that either (1) “the representation will involve the lawyer in representing differing interests” or (2) “there is a significant risk that the lawyer’s professional judgment on behalf of a client will be adversely affected by the lawyer’s own financial, business, property or other personal interests.” In addition, while lawyers are associated in a firm none of them may knowingly represent a client when any one of them practicing alone would be prohibited from doing so.  Rule 1.10(a).  Thus, if the inquirer would be prohibited under Rule 1.7 from representing the new client in a proceeding against the Village because he is a part-time Town prosecutor, then, without the consent of the Town and the private client, the inquirer’s conflict would be imputed to all the lawyers in the firm such that no lawyer at the firm could represent this individual in a proceeding against the Village.
6. The threshold question here is whether the firm’s representation of an individual in a lawsuit adverse to the Village conflicts with the inquirer’s representation of the Town.  The inquirer makes clear that the attorneys for the Town represent the Town, not the Village.  The Village is represented by a Village Prosecutor who is separately supervised by the Corporation Counsel.  Further, the scope of the inquirer’s duties as a part-time Town attorney (prosecuting Town Code and Vehicle and Traffic law violations, drafting and interpreting Town statutes, and general legal advice and representation of the Town) are distinct from the duties of the Village Prosecutor (prosecuting violations of Village zoning laws, building codes and the Village Code).
7. We recognize that there may be instances where the inquirer’s actions on behalf of the Town may further the interests of the Village or may rely on resources that are shared with Village prosecutors.  For example, the inquirer prosecutes traffic violations written primarily by Village Police, and litigates on behalf of the Town in the merged Town and Village courts.  Such shared resources alone are not, in our opinion, sufficient to give the inquirer a conflict of interest.
8. However, this Committee has issued many opinions setting conditions on the private practice of law by part-time prosecutors.  For example, a part-time prosecutor is prohibited from representing criminal defendants in matters where (i) the lawyer is required to appear before a judicial or other official of the locality he or she publicly represents, (ii) the government unit where the lawyer is employed or one of its ordinances is involved, (iii) the charges are similar to those the lawyer prosecutes or (iv) the investigating officers or law enforcement personnel involved are those with whom the lawyer associates as a prosecutor.  See N.Y. State 874 (2011); N.Y. State 544 (1982) and the opinions cited therein.
9. Here, the matter is not a criminal matter.  Moreover, the lawyer would not be required to appear before a Town judge or official.  See C.P.L.R. § 7804(b) (an Article 78 proceeding “shall be brought in the supreme court in the county specified in subdivision (b) of section 506,” with exceptions not applicable here).  The governmental unit involved is the Village, and the ordinances involved are those of the Village, not the Town.  Moreover, the subject matter is not similar to matters the lawyer prosecutes.
10. In N.Y. State 800 (2006), this Committee concluded that a part-time prosecutor was barred from accepting Family Court appointed counsel assignments where the matters involved investigating officers or law enforcement personnel with whom the lawyer was currently working or had previously worked as a part-time prosecutor, because of the possible effect on the lawyer’s professional judgment and on the lawyer’s future working relationships with such law enforcement personnel.
11. Following the reasoning of Opinion 800, it would be impermissible for the inquirer to represent a client in a matter in which he is likely to be adverse to law enforcement personnel with whom he had worked or is likely to work in connection with his role as a Town prosecutor, and such a conflict would be non-consentable. Ordinarily, however, we would expect that representing a client in a zoning or planning board matter adverse to the Village would not involve adversity to Village law enforcement personnel. Yet even assuming there is no conflict under Rule 1.7(a), the inquirer is prohibited from using any influence he may have as a public official to influence, or attempt to influence, any tribunal to act in favor of the firm’s proposed client.  Rule 1.11(f).
12. Assuming that the zoning or planning board matter would not involve adversity to Village law enforcement personnel, representation of the private client and the Town would not involve representation of differing interests, and there is no conflict to impute to other lawyers at the inquirer’s firm.

CONCLUSION

13. The law firm of a part-time prosecutor for Town may represent a client in an Article 78 proceeding against Village, concerning actions taken by Village’s zoning board or planning board, where (i) the Town and Village are separate legal entities and have separate legal departments, (ii) the Town Attorney and his or her staff, including the part-time prosecutor, have no responsibility for prosecuting Village zoning laws, and (iii) the proceeding would not involve Village law enforcement personnel, even though the Town and Village courts have, in effect, been merged and the Village provides police protection services to both the Village and Town.

(20-15)