NEW YORK STATE BAR ASSOCIATION
Committee on Professional Ethics
686 - 4/21/97 (36-96)
Topic: Service of
part-time village attorney as county committeeman of political party and
endorsement of candidates
Digest: A part-time village attorney
with prosecutorial duties may not serve as a county committeeman or
endorse candidates for political office.
Code: DR 1-101(A)(5);
EC 7-13; 9-2; 9-6.
(1) May a part-time village attorney serve as a county committeeman
for a political party?
(2) May a part-time village attorney collect signatures on a
designating petition for a political candidate?
The question of whether
municipal attorneys may engage in political activity has been addressed
by this Committee before, but we have not addressed the specific
situation of a part-time village attorney. In our past analyses, the
ability of a municipal attorney to participate in political activity
consistent with the Code of Professional Responsibility has depended
upon whether the attorney performs a prosecutorial function as part of
the office. The
importance of preserving the impartiality of the prosecutorial role has
repeatedly led us to conclude that prosecutors must avoid partisan
political activities. See, e.g., N.Y.
State 683 (1996); N.Y. State 675 (1995).
In New York State, district
attorneys sometimes appoint village attorneys as assistant district
attorneys to prosecute village ordinances, although the village is
responsible for compensating the appointee. Such appointees’
prosecutorial functions are ordinarily limited to the prosecution of
violations of municipal codes.
This Committee, in N.Y. State
573 (1986), held that county attorneys, who also have only limited
prosecutorial functions, are subject to the same limitations on
political activity as those that pertain to District
language particularly appropriate to any municipal attorney with a
limited prosecutorial function, the Committee stated “[T]he county
attorney acts for the county in prosecuting administrative proceedings
to enforce various local laws, and while those proceedings are not
technically criminal, they do involve enforcement directed against
individuals for violations punishable by fine.” N.Y. State 573. Similarly, we have held that
town attorneys with prosecutorial functions may not serve as a member of
a political party’s committee. N.Y. State 273
The restrictions on the
political activity of prosecutors have been recently reiterated in N.Y.
State 683 (1996), which explains the reasons underlying the prohibition
in detail. In
essence, the restriction arises because prosecutors have a special duty
to seek justice that imposes on them a responsibility “not only to
ensure the fairness of the process by which a criminal conviction is
attained, but also to avoid the public perception that criminal
proceedings are unfair.” N.Y. State
683; See EC 7-13. Thus, those having the role of prosecutor must stay as far
above the political fray as possible in order to avoid engaging in
conduct that is prejudicial to the administration of
1-102(A)(5); EC 9-2, 9-6. This prohibition clearly applies to service as a party
committeeman. N.Y. State 273 (1972); N.Y. State 217 (1971). Nor may a municipal attorney
with prosecutorial functions circulate petitions, since asking voters to
sign a petition is in effect endorsing the candidate whose petition is
presented, and prosecuting attorneys may not ethically endorse
candidates, with the limited exception that elected prosecuting
attorneys may endorse a successor candidate. N.Y. State 272 (1972); N.Y.
State 537 (1981). “Actively campaigning for candidates for public office is
one of the rights a public prosecutor must forego in order to properly
discharge the obligations of his office.” N.Y. State
The Committee recognizes that
these ethical proscriptions impinge on the rights of association of
prosecutors, and has sought balance by permitting political
contributions, N.Y. State 683, and attendance at political functions in
certain limited situations. N.Y. State 573. However, to permit additional
political activity would risk creating precisely the public perception
of political influence that must be avoided.
We note that we have previously
stated that if a town attorney waives the prosecutorial duties that are
otherwise attendant to the office, “If such waiver is permitted
and if by law such activities are not prohibited, service as a member of
a political committee by a town attorney would not create an appearance
of impropriety and would not be prohibited.” N.Y. State 273. This principle would be
equally applicable to a village attorney who has no prosecutorial
function in the first place, or who waives that role, if such a waiver
is legally possible.
Finally, our opinions dealing
with the separate question of whether part-time municipal attorneys with
prosecutorial duties are disqualified from representing criminal
defendants in their private practice, e.g., N.Y. State 544
(1982), do not draw any distinction between part-time and full-time
prosecutors, and we see no basis to draw such a distinction with respect
to the scope of permissible political activity. The need to protect the
public perception of fairness in the discharge of the prosecutorial
function is present whether the prosecutor serves on a full- or
For the reasons stated, both
questions are answered in the negative if the part-time village attorney
performs a prosecutorial function.