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(Inquiry No. )
Conflicts of interest, appearance of impropriety: attorney’s appearance before local criminal court or administrative adjudicative agency representing a private individual while employed as a police officer.
An attorney who is also actively employed as a police officer may not represent a client in connection with a traffic infraction which is adjudicated in either a local criminal court or an administrative adjudicative agency.
Inquiring attorney is recently admitted to practice. He is presently employed as a police officer, although he does not specify in which county, town or village, his jurisdiction applies.
Inquiring attorney wishes to know whether as a police officer he is precluded front accepting employment to defend clients in non-crirninal traffic matters — specifically, traffic infractions — which would be returnable in local criminal courts or administrative, adjudicative agencies.
May an attorney who is currently employed as a police officer ethically, defend clients issued non-criminal traffic summonses which are returnable (a) before a local criminal court, or (b) before administrative adjudicative agencies in Nassau County,, Suffolk County or New York City?
(a) No. (b) No.
Prior opinions of this Committee and other ethics committees have already determined that a police officer/attomey may not represent criminal clients in any jurisdiction, nor may a police officer/attomey represent clients in civil matters which involve the municipality which employs the police officer/attomey. See Nassau County Opinions 93-31, 93-21, 88-9. See also New York State Opinions 615 (1990) and 435 (1976).
Inquiring attorney, however, asks whether a police officer/attorney’s may represent clients in non-criminal traffic matters in the criminal courts or before administrative agencies which adjudicate such matters. There are two issues which must be discussed; conflict of interest and the appearance of impropriety.
A. Conflict of Interest
Canon 5 of the Code of Professional Responsibility requires that a lawyer exercise independent professional judgment on behalf of a client. EC 5-1 advises that an attorney’s professional judgment should be exercised “solely for the benefit of the client and free of compromising influences and loyalties.”
Actual conflict need not be present. An attorney should decline employment where there is a reasonable probability that personal interests will adversely affect client representation. EC 5-2; See also EC 5-14.
The cautionary instructions of the Ethical Considerations are embraced by DR IO I (A), which states in pertinent part:
Except with the consent of the client after full disclosure., a lawyer shall not accept employment if the exercise of professional judgment on behalf of the client will be or reasonably may be affected by the lawyer’s own financial, business, property, or personal interests.
EC 8-8 adds that when an attorney is also a public official, certain other more stringent restrictions apply:
A lawyer who is a public officer, whether full or part-time, should not engage in activities in which the lawyer’s personal or professional interests are or forseeably may be in conflict with the lawyer’s official duties.
In Nassau County Opinion 93-21 this Committee recognized that “it is apparent that an attorney who is also employed by the county, as is Inquiring Counsel, would find himself in a compromising position where he represents an interest adverse to that of the county which is his employer.”
The inquiring attorney here is a police officer seeking to represent clients in connection with traffic related offenses. As a police officer, inquiring attorney’s duties include enforcing the vehicle and traffic laws. Yet as an attorney he would be required to challenge enforcement of those same laws on behalf of his client. This is an inherent conflict of interest which cannot be waived by client consent.
Furthermore, the New York State Bar Association determined in N.Y. State Opinion 615 that a police officer/attorney would not be permitted to represent criminal clients by virtue of DR 5-101(A). While the language of Opinion 615 is vague as to jurisdiction, it has been interpreted by this Committee to prohibit a police officer/attorney from representing a criminal defendant in any jurisdiction (BANC Op. 93-21). It remains the opinion of this Committee that DR 5-101(A) prohibits a police officer/attorney from representing clients in criminal or quasi-criminal matters in any jurisdiction.
Inquiring attorney attempts to distinguish his situation by specifying that the clients he desires to represent have received non-criminal traffic summonses. However, these matters would be adjudicated in criminal courts or adjudicative bureaus where, in all likelihood, the primary “prosecution” witnesses would be police officers. Traffic adjudications are intrinsically law enforcement proceedings in which police officer/attorneys are prohibited from appearing on behalf of defendants. Therefore, inquiring counsel’s proposed representation of defendants before a traffic court or adjudicative agency falls within the prohibition against police officer/attorneys representing criminal defendants because of conflicting interests and loyalties.
B. Appearance of Impropriety
Attorneys have the obligation to act in a manner that inspires “the confidence, respect and trust of clients and of the public; and to strive to avoid not only professional impropriety but also the appearance of impropriety.” EC 9-6. Moreover, DR 8-101(A)(2), focusing upon public officials, requires that “[a] lawyer who holds public office. shall not use the public position to influence, or attempt to influence, a tribunal to act in favor of the lawyer or of a client.”
New York State Opinion 615 reasoned that “the public might lose faith in the criminal justice system if it believes that the lawyer was employed in the hope that the lawyer’s position as a police officer might enable the lawyer to obtain more lenient treatment for the defendant. ”
In this Committee’s view, it unduly suggests impropriety for a police officer/attorney to represent a client either in a matter which involves the municipality employing him or — with exceptions not here relevant — in the types of matters with which the attorney regularly deals in his capacity as a police officer. The Code of Professional Responsibility prohibits such an appearance of impropriety.
The Committee has not studied or discussed whether the proposed representation would violate of any police department miles or regulations. It is axiomatic that should a police officer/attorney violate such rules, those violations would create the appearance of impropriety and might also violate DR 1-102(A)(8), which provides that a lawyer shall not engage in “conduct that adversely reflects on the lawyer’s fitness to practice law.”
Due to the inherent and fatal conflict of interest, as well as the certain appearance of impropriety which would result, it is the opinion of this Committee that a police officer/attorney is prohibited from representing a client charged with a traffic infraction before a local criminal court or an administrative adjudicative agency in any county or jurisdiction in New York State.
[Approved by the Executive Subcommittee on March 18, 1997; approved by the Executive Subcommittee on March 26, 1997]