Ethics Opinion 323NEW YORK STATE BAR ASSOCIATION Committee on Professional Ethics
Opinion #323 – 01/24/1974 (27-73)
adverse interests, appearance of, conflict of, client consent, legal fees, municipality consenting, partnership, part-time public, prosecutors, public agency, public image, town/village, village mayor
Topic: Partnership of village mayor and village attorney
Digest: Law partners may not simultaneously serve as village mayor and village attorney
Code: Canon 5, 9; EC 5-1, 5-2, 9-2, 9-6; DR 5-101 (A), 5-105(D)
May a lawyer who is serving as village attorney have a law partnership with the village mayor, where under the partnership agreement neither is to share in any of the compensation paid by the village to the other?
Since this Committee does not pass upon issues of law, we express no opinion as whether and under what circumstances law partners may legally serve the same village at the same time, one as mayor and the other as village attorney. We call attention, however, to Sections 801 and 802 of the General Municipal Law, and to opinions of the State Comptroller relevant thereto, including 66-646, 67-666 and 73-632.Even if we assume that there is no legal prohibition against such employment, there still remains the question of the ethical propriety of the partnership under Canon 9 and other applicable provisions of the Code. The application of the Code is not affected by statutes or regulations governing activities of lawyers which may appear to prescribe less stringent standards. ABA 203 (1940); N.Y. State 272 (1972). Professional standards adopted in the public interest often condemn the doing of what the law has not forbidden. Stone , The Public Influence of the Bar, 48 Harv. L. Rev. 1, 13 (1934); Drinker, Legal Ethics 4 (1953).Canon 9 provides:’A lawyer shall avoid even the appearance of professional impropriety.”EC 9-2 provides, in pertinent part:”When explicit ethical guidance does not exist, a lawyer should determine his conduct by acting in a manner that promotes public confidence in the integrity and efficiency of the legal system and the legal profession.”EC 9-6 provides, in pertinent part:”Every lawyer owes a solemn duty to uphold the integrity and honor of his profession; to encourage respect for the law and for the courts and the judges thereof; to observe the Code of Professional Responsibility; to act as a member of a learned profession, one dedicated to public service; …and to strive to avoid not only professional impropriety but also the appearance of impropriety.’A continuing law partnership between a village mayor and a village attorney would expose the partners to a serious appearance of impropriety, even if both partners acted with utmost scrupulousness. This appearance of impropriety would arise both from the fact of employment and from the relationship between them as practicing law partners. Neither an agreement not to share in each other’s village compensation nor the public announcement of such an agreement would adequately eliminate this appearance of impropriety.Among the problems which could arise are possible loss of public confidence in the objectivity and independence of a village attorney whose professional duty may call for legal advice which would bring him into conflict with his private law partner, the mayor. Another area of possible conflict could be in such matters as those concerning whether or not the village attorney should be employed, the proper performance of his duties and the terms and interpretation of his contract of employment. Here the mayor, as a member of the village board of trustees, could be faced with a possible conflict between his duty as a village official, his loyalty to his law partner, the village attorney, and even on occasion to his own self-interest should an issue arise reflecting on the professional performance of the village attorney, which in turn could reflect on the reputation of the law firm of which both are partners.Canon 5, EC 5-1, EC 5-2, and DR 5-101(A) make clear that lawyers should not accept professional employment under which their personal interests and loyalties could reasonably appear to be in conflict with their professional obligation of loyalty to a client. While private clients might consent to the representation of conflicting interests, such consent cannot be given where the public interest is involved. See e.g.: N.Y. State 322 (1973), N.Y. State 257 (1972); N.Y. State 176 (1971), Drinker, Legal Ethics 120, 129 (1953).A further reason for disapproving the continuation of the partnership stems from the provisions of DR 5-105(D) which provides:”If a lawyer is required to decline employment or to withdraw from employment under DR 5-105, no partner or associate of his or his firm may accept or continue such employment.”Assuming that the village mayor would be disqualified from accepting employment from the village to serve either as village attorney or on special retainer, any law partner would be similarly disqualified. N.Y. State 280 (1973). See also, Wood v. Town of Whitehall, 120 Misc. 124, 197 N.Y. Supp. 789 (Sup. Ct. 1923), aff’d 206 App Div, 786, 201 NY. Supp 959 (3d Dept. 1923).We emphasize that our disapproval of the proposed partnership is based on the correlative admonitions of Canons 5 and 9 and the applicable EC’s and DR’s thereunder. It is not intended to reflect on the good faith or professional integrity of any lawyers who may have participated or may be participating in such an arrangement in good faith, with full knowledge and approval of the village officials and with no actual or apparent damage to the public interest. “It is the duty of lawyers who accept public office or employment ‘to remain above suspicion even at personal financial sacrifice’.’ N.Y. State 300 (1973). See also, N.Y. State 292 (1973).