NEW YORK STATE BAR ASSOCIATIONCommittee on
Opinion #243 - 04/28/1972
Topic: Sharing of Salary of Parttime Town Attorney with
Digest: It is not improper for a part-time Town Attorney to share his
salary with his law partners
Code: DR 5-105(D)
May a part-time Town Attorney share the salary of his public office
with his law partners?
It is not improper to share the salary of a part-time Town Attorney
with his law partners. While Section 20 of the Town Law provides that
the Town Board may establish the office of Town Attorney, it also
provides that the Town Board may employ counsel to the Town Attorney in
respect to any particular matter. There appears to be no reason why such
counsel may not be a law firm with fees shared by partners in the
customary manner. Neither does there appear to be any reason for
applying one rule to the selection of a part-time Town Attorney and
another rule to the employment of other counsel. In either case the
attorney is the attorney for the town, and both he and his firm are
subject to all the ethical obligations and restrictions that go with
such representation as in the case of any other retainer of a law
partnership. N.Y. State 40 (1966): DR 5-105(D).
Such sharing of fees by partners is well understood by the public and
does not create any impropriety or appearance of impropriety. In N.Y.
City 684 (1946) it was held that "all fees when received become an asset
of the partnership. Their individual identity is lost. They become
subject to the total expense of the partnership and the net income which
is divided among the partners is a residuum not identifiable with any
specific source of origin". See also, N.Y. State 223 (1971).
N.Y. State 210 (1971), relating to the sharing of the salary of a
part-time Town Justice with partners, relates to an entirely different
problem. Such case is subject to considerations arising under the Canons
of Judicial Ethics which require complete objectivity and independence
and complete freedom from suspicion that those with whom he shares his
salary could influence his conduct as a judge.