July 16, 2009

Ethics Opinions May Impact Legislature Race

In what may be an extremely problematic situation for the Niagara County Democratic Committee, Niagara Times has learned that a significant conflict of interest may lie ahead for County Legislature candidate Scott Stopa should he prevail in his quest to unseat incumbent legislator Tony Nemi who currently represents the 15th Legislative District in Lockport.

In a detailed email received by Niagara Times, several opinions issued by the New York State Bar Association's Committee on Professional Ethics related to what a county legislator/attorney can and cannot do while serving in the dual capacities were cited. Those include:

Opinion 692 (55-96/26-97) 6/23/97 Topic: Part-time legislator’s practice in criminal courts in city and county. Digest: A part-time city or county legislator may not represent criminal defendants in cases in which the legislator expects to cross-examine a police officer who is a member of a police department over which the legislature has budgetary authority, or in which the legislator would be opposing a lawyer over whose office the legislature has budgetary authority.

Opinion 798 – 9/28/06 Topic: Practice of criminal law by legislator/lawyer. Digest: A lawyer/county legislator may not represent criminal defendants in cases involving members of a police department or district attorney’s office over which the legislature has budget or appointment authority. It is irrelevant whether the county or the budget is large or the representation involves only plea bargaining. If the lawyer/legislator is employed by a law firm, other lawyers in the firm are not per se vicariously disqualified, but imputed disqualification may be appropriate where members of the public are likely to suspect that the lawyer/legislator’s influence will have an effect on the prosecution of the case.

Opinion 702 - 5/7/98 (60-97/60a-97) Topic: Practice of law by member of county legislature. Digest: Prohibition against practice of criminal law by a lawyer-legislator not cured by abstention on votes affecting District Attorney’s budget and public disclosure of intention to abstain.

Now, that's a whole lotta legalese for someone whose closest experience to the law is pleading down a couple of speeding tickets, but let's take a stab at interpreting the opinions:

An attorney who practices criminal law cannot be opposed by an attorney who works for the county. So if the attorney/legislator walks into the courtroom and a District Attorney is prosecuting the case, the lawyer/legislator is off the case because as a legislator, he does indeed have budgetary authority over the D.A.'s office. If the lawyer is employed by a firm, which Stopa is (Jackson, Balkin & Douglas), the entire firm is potentially disqualified from most criminal cases. Lastly, by simply choosing to abstain from votes that impact the D.A.'s budget, a lawyer/legislator is not cured from the prohibition against the practice of criminal law.

So, how would this impact someone such as Stopa should he win? If he were representing a party in a custody or visitation matter, the moment that a public-pay law guardian is appointed by the Family Court for the other party from the Public Defender's office or the Conflict's Office, the elected official has a conflict and must withdraw from representing his client.

In a macro sense, he may not appear in any court in which his client is being prosecuted by the Niagara County District Attorney's office. That includes misdemeanors and felonies, which are prosecuted in town courts, city courts, county courts and supreme court. That doesn't leave many options for a lawyer or a firm that spends a significant amount of time on criminal law.

Stopa and his firm must know of these opinions. And maybe they're okay with this. Maybe having an associate in the Niagara County Legislature is that important to the firm that they are willing to possibly set aside their work in criminal law. Maybe Stopa is content to give up his criminal law work in the courts of Niagara County for the $15k that the job pays.

But something tells me that they don't know.

With nominating petitions to be filed within the next day or two and acceptances to be filed shortly thereafter, it's going to be very interesting to see how this plays out.


Paladin said...

Gee, Hobbes, I was just driving along Market Street in Lockport, and heard someone inside a law firm shouting "D'oh!"

Either Homer Simpson now has a J.D., or Scott Stopa is feeling really stopid right about now...

Dark Knight said...

I had never heard of this before, but it makes sense. You can't advocate against the DA during the day and then whack his budget at night.