When One Side Might Be Harmed by a Conflict, So Might the Other

It's sad that it took the Appellate Division of New York state's Supreme Court (not the top court in the state) to disqualify a town attorney from a case when that attorney's firm had represented the opposing party in a matter substantially related to the case.

Government ethics tends to focus on one side of conflict of interest situation. That is, an ethics program tries to prevent officials from mishandling their conflict situations in such a way that they might harm the public. Possible harm to the opposing party in a case with the town does not seem like a government ethics concern. But this is a false distinction.

In a conflict situation, it often isn't clear which side will be harmed or favored. This doesn't have to be determined. What needs to be determined is whether there is a possibility of harm or special benefit. The possibility that the town attorney might be biased, or seen as biased, toward the town's adversary in a matter is sufficient to cause him to withdraw from the matter.

In other words, before the opposing party sought the Oyster Bay attorney's disqualification from the proceeding, the town attorney should have withdrawn from participation or been asked to withdraw by whatever official had the authority to do so. Not a penny of town money should have been authorized to argue that the town attorney should represent the town in this case.

Thanks to Patty Salkin's Law of the Land blog for describing this case.

Robert Wechsler
Director of Research-Retired, City Ethics

---