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Ethically Speaking: Does serving on a town board impute conflicts?

John E. Bernacki

As lawyers, we often serve on various boards, whether public interest boards, town boards or otherwise. Doing so allows us to perform a public service and give back to our communities. In fact, I served on the Pittsford Town Board for 6 years for that very reason. But sometimes, serving on a board can create a conflict of interest that can affect our ability to handle certain types of matters or appear in certain venues.

In February, in Opinion 909 (2/28/12), the New York State Bar Association’s Committee on Professional Ethics addressed that issue and fielded an inquiry regarding a possible conflict of interest created by an attorney’s service on a town board. The specific question asked was whether the attorney, or members of the inquiring attorney’s law firm, could appear in the Justice Court, where the inquiring attorney, as a member of the board, had control over the budget of the court and other public entities.

In reaching its decision, the committee examined two prior lines of cases. In the first, the committee considered whether lawyers who are members of a local legislative body may appear before a judge whose salary is set by the legislative body. The other line of cases addressed the issue of whether a lawyer who is a member of a local legislative body may appear on criminal matters, where the legislative body sets the salaries of the law enforcement employees.

In reaching its decision in the case at hand, the committee analyzed it decisions in these two lines of cases and applied its holdings to the factual scenario at hand.

First, the committee reasoned that since it concluded in its prior decisions that an attorney board member can, in most cases, appear before a judge whose salary is controlled by the board, the lawyer’s firm in the case at hand was not barred from appearing before a town justice.

However, based on the second line of cases, the committee concluded that the board member attorney was barred from appearing in criminal cases since it was possible that members of the prosecution team or members of law enforcement might be cognizant of the possibility that their actions could affect their salary and would thus exercise “undue caution in handling the case.” This conflict would not be imputed to the firm unless there was a public perception of favoritism because of the attorney’s status as a board member.

Finally, based upon the criteria set forth in its prior opinions, the committee noted that a handful of other situations would likewise prevent the attorney board member from appearing in the Justice Court, such as where the attorney appears: “(i) before a judge who was appointed or subject to confirmation by the legislative body or board, (ii) in matters in which the town or county, or a town or county agency, is a contesting party, or (iii) in matters in which the interpretation or validity of a town or county ordinance or regulation is at issue.”

Accordingly, the committee concluded that: “Except where the facts and circumstances make it likely that the public will suspect undue influence, the partners and associates of a member of a town board may appear in town Justice Court, even though the board has control over the salaries and budget of that court and of the police department that may be the adversary in certain matters. There may be particular cases, however, in which a representation would present the town board member with a conflict of interest that would prevent the member from representing the private client without the informed consent of the private client, and that prohibition will be imputed to the other lawyers in the member’s firm.”

All in all, this opinion strikes a good balance. It prevents situations which might affect the unbiased administration of justice, while limiting the situations in which the lawyer might be barred from practicing in the very Town in which he lives and serves. Any other decision would effectively discourage lawyers from serving on Town boards — which is certainly not a desired outcome. Instead, the holding allows lawyers the flexibility to serve on boards without unnecessarily impeding their ability to earn a living.

 

The Hon. John E. Bernacki is a Pittsford Town Court Justice. His law firm, John E. Bernacki Jr. PC, is located in Pittsford. He can be reached at www.johnbernackilaw.com.

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