Ethics Opinion 209

By Committee on Professional Ethics

NEW YORK STATE BAR ASSOCIATION
Professional Ethics Committee Opinions

Opinion #209 – 11/22/1971 (39-71)

Topic: Conflict of Interest Attorney-Legislator
Digest: Not proper for attorney who is city councilman to act as attorney for city school district dependent on the city for services
Code: EC 8-8; 9-6, DR 5-101(A); 5-105(A), and (B)

QUESTION

May a city councilman act as attorney for a city school district which receives services from the city?

OPINION

It is improper for a city legislator to act as attorney for a city agency where his duties to act on behalf of his client may foreseeably be in conflict with his duties as a legislator.EC 8-8 provides:”Lawyers often serve as legislators or as holders of other public offices. This is highly desirable, as lawyers are uniquely qualified to make significant contributions to the improvement of the legal system. A lawyer, who is a public office, whether full or part-time, should not engage in activities in which his personal or professional interests are or foreseeably may be in conflict with his official duties.”It is clear that on any matter affecting the school district to be passed upon by the city legislature, the legislator would have to disqualify himself both as attorney for the school district and as legislator. N.Y. State 145 (1970). It is equally clear that the legislator would have to abstain from giving advice to the school district in situations where the interests of the city are involved. A lawyer should refrain from accepting employment by a client where it is foreseeable that the lawyer’s duties in another capacity will affect his responsibilities to his client. DR 5-101(A), DR 5-105(A) and (B). Consent of the client is unavailing where the client is a public agency and the lawyer a public official. N.Y.State 110 (1969).Finally, a lawyer must “avoid not only professional impropriety but also the appearance of impropriety.” EC 9-6. Where a legislator is retained to act as attorney for a client dependent to any substantial extent upon the legislature of which the legislator is a member, an impression of impropriety is inevitably created in the eyes of the public which should be avoided. N.Y. State 141 (1970).

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