Can a law firm do pro bono criminal appeals for both a DA's office and Legal Aid at the same time?

Plain-English summary

A large firm already provided pro bono representation to indigent appellants through The Legal Aid Society's Criminal Appeals Bureau and wished also to volunteer in a District Attorney's program, in which private lawyers are sworn in as Special Assistant District Attorneys to represent the People on a single assigned appeal. The question was whether simultaneous involvement in criminal prosecution and defense was ethically improper.

The Committee distinguished the firm's situation from the line of opinions (N.Y. State 670 and 544) holding that a part-time prosecutor employed by a government unit is disqualified from private criminal defense, with that disqualification imputed to the firm under DR 5-105(D). Those opinions rest on the inherent incompatibility of the prosecutor and defense roles and the prosecutor's special public responsibilities. The Committee concluded that a volunteer in the DA program is more like a special district attorney appointed for a single matter (N.Y. State 564): the lawyers would not be public employees, their appointments would be limited to individual appeals, their identification with the State would be slight, and because the work was unpaid there was no risk of subordinating clients' interests to financial gain.

The Committee did flag a case-specific concern under DR 5-105(A) and (C) and EC 5-15: prosecutorial misconduct is frequently raised on appeal, and it might not always be "obvious" that a firm could adequately represent a defendant attacking the conduct of a county's Assistant District Attorneys while other firm lawyers served as Special Assistant District Attorneys in that same county. The Committee declined to impose a per se ban or to require the firm to refuse Legal Aid assignments arising from the same DA's convictions, but advised lawyers to assess, case by case, whether adequate representation of all clients was obvious, resolving doubts against the representation. The question was answered in the affirmative.

Currency note

This opinion was issued in 1996, before New York replaced the Code of Professional Responsibility (the Disciplinary Rules and Ethical Considerations cited here) with the New York Rules of Professional Conduct, effective April 1, 2009. 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 Treat this page as historical context, not current guidance.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: Can the same firm do pro bono work for both the prosecution and the defense in criminal appeals?

A: The opinion concluded a firm may volunteer in both a DA's appeals program and a Legal Aid appeals program, because the volunteer special-prosecutor role differs from that of a disqualifying part-time prosecutor.

Q: Why isn't the firm treated like a disqualified part-time prosecutor?

A: The Committee concluded the volunteers are more like special district attorneys appointed for a single matter, unpaid and only slightly identified with the State, so the part-time-prosecutor disqualification (and its firm-wide imputation under DR 5-105(D)) does not apply.

Q: Are there situations where a conflict could still arise?

A: Yes. The opinion concluded that where a defendant should attack the conduct of a county's prosecutors while firm lawyers serve as Special Assistant District Attorneys in that county, it may not be "obvious" that adequate representation is possible, so the firm should assess each case and resolve doubts against the representation.

Background and rules framework

The opinion was decided under New York's then-governing Code of Professional Responsibility: DR 5-101(A) (the lawyer's own-interest conflict), DR 5-105(A), (C), and (D) (differing interests, consentability, and imputed disqualification), with ECs 2-25 (pro bono) and 5-15 (multiple clients with potentially differing interests). The Model Rules analogues are Rule 1.7 and Rule 1.10.

Citations and references

Rules of Professional Conduct:

• New York Code DR 5-101(A), DR 5-105(A), (C), (D); ECs 2-25, 5-15 (Model Rules 1.7, 1.10 analogues)

Cases:

• Lanza v. Rath, 150 Misc. 2d 85 (Sup. Ct. Orange Co. 1991), and People v. Cooper, 156 Misc. 2d 483 (County Ct. Erie Co. 1992), on part-time prosecutor disqualification

Other opinions cited:

• N.Y. State 670 (1994); N.Y. State 544 (1982); N.Y. State 564 (1984); N.Y. State 629 (1992)

See also

• ISBA Ethics Op. 13-07: Lawyer as Both Municipal Prosecutor and Administrator
• ISBA Ethics Op. 03-06: Fee Sharing When a Partner Becomes a Prosecutor

Source

• Landing page: https://www.nycbar.org/reports/formal-opinion-1996-4-pro-bono-representation-appellate-practice/