Ethics Opinion 226

By Committee on Professional Ethics

NEW YORK STATE BAR ASSOCIATION
Professional Ethics Committee Opinions

Opinion #226 – 01/26/1972 (59-71)

Topic: Conflict of Interest, Public Officers
Digest: City Councilman not barred from practicing in Police Court or City Court
Code:  DR 5-101; DR 5-105(A); DR 8-101(A) (2); EC 5-15

QUESTION

Is it proper for an elected member of a city council to practice law in the Police Court and City Court of his city notwithstanding that the salaries of the judges of those courts are set by the city council?

OPINION

DR 8-101(A) provides:”A lawyer who holds public office shall not use his public position to influence, or attempt to influence, a tribunal to act in favor of himself or of a client.”However, the mere possibility that a judge may be influenced by the lure or fear of a councilman’s vote on the salaries of judges of his court does not pose so evident a threat to the impartial administration of justice as to warrant barring the councilman from practicing law in his court, assuming that the city council does not appoint the members of the court.In a case where a client and the municipality or one of its agencies are the contesting parties, or the validity of a city ordinance is in question, a conflict of interest would exist, for then it would be the duty of the lawyer to contend for the best result for his client and at the same time as a member of the city council, to do his utmost to protect the interests of the city. In such case, as well as appearance before an administrative agency of the city, the councilman would be disqualified from representing the private client. DR 5-101; DR 5-105(A); EC 5-15. See N.Y. State 141 (1970) and N.Y. State 110 (1969). To a lesser extent there may be a conflict in Police Court matters, but this will depend on the facts of each case. In ABA Inf. 1126 (1969) it was stated:”So long as the attorney, although a part-time state legislator, does not use his legislative position to try to change, amend, modify, repeal or alter the existing laws for the benefit of his clients, it would not appear that he would be acting improperly in defending persons accused of violating criminal laws of his state. But, should he feel that his representation of persons accused of crime does not permit him to have a free, impartial and unbiased attitude toward the enactment of criminal laws for the benefit of the public as a whole, then this should dictate that he not endeavor to serve both as a legislator and represent those accused of crime.”

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