Ethics Opinion 218

By Committee on Professional Ethics

NEW YORK STATE BAR ASSOCIATION
Professional Ethics Committee Opinions

Opinion #218 – 12/20/1971 (48-71)

Topic: Conflict of Interest Part-time Prosecuting Attorney
Digest: Part-time prosecuting attorney should not represent a private client in a judicial proceeding against the municipality which employs him
Code: EC 5-15; 8-8, DR 5-105(A), (B) and (C)

QUESTION

May a part-time prosecuting attorney, who is not an officer of the city, represent a private litigant in a certiorari proceeding in the Supreme Court against the city which employs him?

OPINION

EC 8-8 provides that:”A lawyer who is a public officer, 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.”In ABA 186 (1938), it was held that a county attorney, acting only in civil matters, should not represent a defendant in a criminal proceeding. The opinion states in part:”…for the county attorney charged with public duties to accept employment adverse to this public employer puts the county attorney in an unseemly situation likely to destroy public confidence in him as a public officer, and bring reproach to his profession.”The crucial fact is that the prosecuting attorney’s client is the city. It is improper for an attorney, at the same time that he represents a client, to sue that client in an unrelated matter on behalf of another. EC 5-15; DR 5-105 (A), (B) and (C).  Consent would generally be unavailing in such a situation; and, in addition, unavailing in this case since the city cannot give consent. N.Y. State 143 (1970).Accordingly, such representation would be improper.

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