Can a lawyer whose partner is a part-time deputy district attorney take criminal defense cases?
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This page answers the general question as of 1986. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
The Committee considered whether a private attorney who practices in partnership with a part-time deputy district attorney for a rural Nevada county may take criminal defense work in any Nevada court. It concluded the partner may not.
The opinion built on two statutes. NRS 7.105 bars a district attorney, deputy, or their assistants from accepting or undertaking the defense of any person charged with violating any Nevada ordinance or law during their term. NRS 252.120 separately prohibits a district attorney's partner from appearing in any criminal action within the county, and the Attorney General had read NRS 252.120 to prohibit the district attorney (and, logically, the partner) from appearing in civil actions adverse to the State or a county. The opinion then applied the Nevada Rules of Professional Conduct (then comprising Supreme Court Rules 150 through 203.5, adopted from the ABA Model Rules effective March 28, 1986): SCR 157(1) on representations directly adverse to another client, and SCR 160 on imputed disqualification, which prohibits any lawyer in a firm from representing a client when one lawyer practicing alone would be barred.
The Committee reasoned that a lawyer who defends criminal cases while a partner represents the State has divided loyalties, even across different cases and counties, because the firm cannot represent adverse parties and "[t]he State and those it prosecutes for crimes are adversaries." Because Nevada has expressly withheld its consent (through NRS 7.105) for a deputy district attorney to defend criminal cases, the partner cannot invoke the client-consent exception in SCR 157(1)(b); the disqualification runs to the partner and the firm under SCR 157 and 160 and the cited statutes. The opinion noted this was the rule in most jurisdictions, citing sister-state ethics opinions and Thompson v. State, while acknowledging that the Georgia court there declined automatic disqualification in rural areas absent an actual conflict.
Currency note
This opinion was issued in 1986, before Nevada's 2006 adoption of the current Nevada Rules of Professional Conduct (the renumbered Rules 1.0 et seq. that replaced the former Supreme Court Rules 150 through 203.5) and the related Ethics 2000-based revisions. The conflict rules discussed are now Rule 1.7 and Rule 1.10, and the cited statutes may have been amended. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.
Common questions
Q: Is a deputy district attorney personally barred from criminal defense work?
A: Yes. The opinion treated NRS 7.105 as indisputably disqualifying a district attorney or deputy from defending anyone charged with violating Nevada's criminal laws in any state court during the term of office.
Q: Does that bar reach the deputy's law partner?
A: Per the opinion, yes. The Committee concluded the disqualification is imputed to partners and the firm under SCR 157 and SCR 160 (and NRS 252.120), so no partner or associate may accept criminal defense adverse to the State.
Q: Can client consent cure the conflict?
A: No. The opinion reasoned that because the State has withheld its consent through NRS 7.105, the partner cannot rely on the client-consent exception in SCR 157(1)(b).
Background and rules framework
The opinion interprets the conflict-of-interest and imputation rules then in force in Nevada, SCR 157 (now Rule 1.7, conflicts with current clients) and SCR 160 (now Rule 1.10, imputed disqualification), against the backdrop of NRS 7.105 and NRS 252.120, which restrict district attorneys and their partners from criminal defense and adverse civil work. The Nevada Supreme Court had adopted the ABA Model Rules, with amendments, effective March 28, 1986.
Citations and references
Rules of Professional Conduct:
- Model Rule 1.7 / former Nev. SCR 157 (conflicts of interest; directly adverse representation)
- Model Rule 1.10 / former Nev. SCR 160 (imputed disqualification)
Statutes:
- NRS 7.105 (1985) (prosecutors barred from undertaking criminal defense)
- NRS 252.120 (1985) (district attorney's partner barred from criminal actions; adverse civil appearances)
Cases:
- Thompson v. State, 330 S.E.2d 348 (Ga. 1985), disqualification of a prosecutor's associate (declining automatic disqualification absent an actual conflict)
Other opinions cited:
- Op. Nev. Att'y Gen. No. 126 (Apr. 25, 1973): scope of NRS 252.120
- State Bar of Texas Op. 419 (1984); State Bar of Wisconsin Mem. Op. 2-69; State Bar of Michigan Informal Op. 49; Maryland State Bar Informal Op. 77-57 (sister-state agreement)
See also
- AL Ethics Op. 1994-10: screening a new assistant district attorney
- CA Op. 2002-158: Public Defender Alternate Office Conflicts
Source
- Landing page: https://nvbar.org/for-lawyers/ethics-discipline/ethics-opinions/
- Original PDF: https://nvbar.org/wp-content/uploads/opinion_01.pdf
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