Opinion No. 1991-6

(Inquiry No. 342 )

Disqualification of partners or associates or attorneys “of counsel” to attorney in public service; appearance of impropriety.

Partners and associates of, and attorneys “of counsel” to attorney in public service may not practice in areas of law in which the public servant attorney may not practice, absent statutory exemption.

Code Provisions:
DR 2-102 (A) (4)
DR 9-101 (B) (1) (a) & (b)
EC 9-1

An attorney may, with the consent of the client, properly take reimbursement for litigation expenses from funds advanced by the client for costs and expenses where the actual expenses were not the particular litigation expenses anticipated at the time the advance was made. In the event of a dispute, the attorney may assert a retaining lien on those funds and/or upon the file to secure reimbursement.

Described Facts:
This is an inquiry from the President of the Board of Judges of the Nassau County District Court, concerning the status of partners and associates of and attorneys “of counsel” to attorneys appointed to the Traffic Prosecutor Selection and Oversight Panel. (The Panel) Panel members are prohibited by law from appearing in any capacity in any part of the Nassau County District Court in any matter relating to traffic or parking violations and are further prohibited by law from appearing in any capacity in any other Court or Administrative Tribunal on any matter relating to traffic or parking violations.

Members of the Panel are appointed and serve without compensation. The panel is responsible for selecting and either contracting with or hiring the Executive Director of the Nassau County Traffic and Parking Violation Agency(PVA) and selecting and hiring or contracting with one or more traffic prosecutors to prosecute traffic infractions.

Do the prohibitions affecting members of the Panel apply also to their partners and aspociates, and to lawyers in an “of counsel” relationship to members of the Panel?

Absent statutory exemption, partners, associates, and attorneys “of counsel” to members of the Panel are prohibited from practicing to the same extent as are members of the Panel.

If an attorney is disqualified from representing a certain class of clients, that disqualification also extends to the partners and associates of the disqualified attorney. “The relation of partners in a law firm are such that neither the firm nor any member or associate thereof may accept any professional employment which any member of the firm cannot properly accept” ABA 296(1959); N.Y. State 232; Nassau County 81-2.

DR 9-101(B) (ll(a) & (b) which allow for the building of a “Chinese Wall” in certain cases do not require a different result since they deal with a lawyer who has left public service, not with a lawyer presently engaged in public service.

Moreover, in the instant inquiry, the appearance of impropriety is virtually inescapable. If an attorney whose partner, associate or “of counsel” is a member of the Penal in question were to be allowed to practice in the very area of law to which the Panel relates, and possibly against one of the prosecutors appointed by the partner or associate, public confidence in the judicial system would be undermined. For example, if an attorney obtained a favorable plea negotiation from a prosecutor hired by the Panel of which the attorney’ partner is a member, it would be virtually impossible to demonstrate convincingly any absence of collusion or favoritism. “A lawyer should promote public confidence in our system and in the legal profession”. (EC 9-1)

The term “of counsel” refers, by definition, to a continuing relationship with a law firm other than as a partner or associate, (DR 2-102[A] [4]), in which there is contemplated the performance of legal services by the “of counsel” attorney for the parent firm. N.Y. State 262; Nassau County 90-31.

Thus, the close relationship between the “of counsel” attorney and the parent firm, would, in the opinion of this Committee, disqualify the “of counsel” attorney to the same extent as a partner or associate if for no other reason than the appearance of impropriety and the need to promote public confidence in the judicial system and the legal profession.

Accordingly the statutory prohibition which applies to members of the Panel applies also to partners and associates of, and attorneys “of counsel” to members of the Panel. The inquiry is answered in the affirmative.

(Approved by the Full Committee February 27, 1991)