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December 28, 2023

Authority to employ legal counsel when it is determined it is necessary to do so in order to avoid a conflict of interest

In this hybrid proceeding pursuant to CPLR Article 78, the Mayor of the City [Mayor] challenged the authority of the Common Council of the City and Lamb and Barnosky, LLP, a law firm, [collectively Common Council] to retain counsel in a dispute with the Mayor concerning the separation of powers between the Mayor and the Common Council.

Supreme Court approved the Common Council's retaining the law firm and the Mayor appealed. The Appellate Division sustained the Supreme Court's ruling with one bill of costs payable by the Mayor to the Common Council.

The Mayor sought to invalidate Resolution R20-78, which was passed by the Common Council and authorized the Common Council to retain its own counsel in a dispute with the Mayor over the separation of powers between the Mayor and the Common Council.

Supreme Court, among other things, had denied the Mayor's petition and declared that R20-78 was valid and that the Common Council may retain separate legal counsel when it determines a conflict exists between the legislative branch and other branches of the City's of government. The Mayor appealed.

Citing Cahn v Town of Huntington, 29 NY2d 451, and other decisions, the Appellate Division opined the Supreme Court properly declared that the Common Council was entitled to retain separate legal counsel who did not have a conflict of interest.

In the words of the Appellate Division, "Notwithstanding lack of specific statutory authority, a municipal board ... possesses implied authority to employ counsel in the good faith prosecution or defense of an action undertaken in the public interest, and in conjunction with its ... official duties where the municipal attorney refused to act, or was incapable of, or was disqualified from, acting"

Here, opined the Court, it was apparent that the Corporation Counsel of the City and the Mayor were taking a position contrary to that of the Common Council and affirmed the Supreme Court's order and judgment.

Click HERE to access the decision of the Appellate Division posted on the Internet.

 

 

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