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RICHMOND COUNTY BAR ASSOCIATION
COMMITTEE ON PROFESSIONAL ETHICS
OPINION # 2
The Committee is in receipt of an inquiry from an attorney who is a candidate for the position of Counsel to the County Clerk of Richmond County,
a part-time position which permits him to practice law.
The inquirer asks if any conflict exists in his continued representation of a partnership wherein one of the partners is the County Clerk.
The position of Counsel is that of a legal advisor for the County Clerk, particularly as to the propriety of accepting instruments
presented for recording and filing. He interprets laws and regulations governing the work of the County Clerk, and gives his opinion thereon.
New York State Bar Association Ethics Opinion No. 392 provides:
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“Lawyers whose public employment
is part-time find themselves in a position of special
sensitivity. They should take particular care not to engage
in activities or accept any private employment which would
tend to undermine public confidence in the integrity and
efficiency of the legal system, or which would give an
“appearance of impropriety even if none exists.” Cf.
EC 9-3. Thus they must avoid private employment which
might involve or give rise to suspicion that unfair influence
may be involved either in the securing of private clients
or in representing them against the state agency by which
they are employed.” |
There is no per se rule disqualifying a part-time public
employee from representing private clients before agencies or
courts. (N.Y. State #593,603). The answer lies in whether or
not there is any functional relationship between the agency
in which the attorney is employed and the body before which
he represents his client. The focus is on the “relatedness of
the proposed representation to the nature of the lawyers public
function.”( N.Y. State #484, 603). For example, a part-time
city attorney may not represent private clients before any city
agency with which he is associated, or provides legal representation
or assistance, but may do so if no such relationship exists.
(N.Y. State #603).
The County Clerk has a myriad of record—keeping functions, most of which are ministerial in nature. He also serves as clerk of the Supreme
Court. N.Y. Constitution, Art. 6. § 6(e). Representation by the Counsel to the County Clerk in private matters raises no conflict
of interest, to the extent that he (Counsel) does not represent one client to the detriment and disadvantage of another.
Such a situation might arise only if the adversary in the litigation in which the inquirer proposes to participate were the State,
or if it were represented by State-paid attorneys.
Even so, the source of Counsel s compensation may not be as important as the nature of the Counsel s duties.
He is subject to the direction and control of the County Clerk; and not to any of the Judges of the Court before whom the litigation
is pending. Thus, he cannot be subject to the same prohibition restricting part—time law clerks from practicing law before
the Supreme Court. N.Y. State #361, 593. In his capacity as Counsel to the County Clerk, he is not required to,and does not appear before
the Supreme Court with respect to matters affecting the County Clerk.
Thus, he is not akin to a part-time prosecutor, who is often disqualified from practicing law before all state courts.
( See, N.Y. State #367, modified by #544).
It may be argued that the inquirer s adversaries may claim an appearance of impropriety because the County Clerk has legal control
and custody over the files, records, judgments, orders, and papers in the very action in which he is a party. If so, the remedy is to
seek a change of venue. The party potentially creating such an appearance is the County Clerk himself and not Counsel,
who has no responsibility over such matters, his role being advisory only.
The Committee thus concludes no ethical restriction exist to prevent the representation described above.
Pursuant to Article VI, Section 19 of the R.C.B.A. By-Laws, please be advised that the statements contained herein
express the opinion of the Committee alone, and have not been passed upon by the Association.
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Wayne M. Ozzi
Chairman, Professional
Ethics Committee |
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