Can a criminal defense lawyer serve on a District Attorney's conviction integrity committee and still represent criminal defendants?

Plain-English summary

Two criminal defense attorneys were invited to serve on a county District Attorney's conviction integrity committee, which reviews wrongful-conviction claims and recommends action to the DA, who decides. The defense attorneys are unpaid volunteers, are not under the DA's control, lack access to case information beyond the matters they review, and may not review claims tied to cases they were involved in (¶ 1). The inquiry asked whether they may continue to practice criminal law (¶ 2).

The committee recounted its long-standing rule that a part-time prosecutor in private practice is barred from representing criminal defendants in New York state courts, because the prosecutor and defense roles are "inherently incompatible" and the public might perceive favoritism (¶ 3). It then explained why that rationale does not fit here: evaluating weaknesses in a past conviction is not at odds with the defense function, and a defense lawyer's skills suit that task. The committee analogized to prior opinions limiting the part-time-prosecutor rule to ongoing prosecutorial roles rather than ad hoc service, citing N.Y. State 564 (1984) and N.Y. City Bar Op. 1996-4 (¶ 4).

The committee then addressed imputation: service would still be problematic if it made the inquirers members of the DA's "firm," because Rule 1.10(a) would impute the office's conflicts to them. But not every association is firm membership; under Rule 1.0(h) Comment [2] and N.Y. State 1036 (2014), the inquiry is fact-specific and looks at public presentation and mutual access to client information. Because the inquirers are unpaid volunteers, not under the DA's control, issue only non-binding recommendations, and lack general case access, they are not members of the DA's firm (¶ 5). The committee concluded they are not categorically barred from serving while continuing to represent defendants, but must watch for particular conflicts, and it flagged that some committee work could be "law reform" under Rule 6.4, with its disclosure obligation (¶¶ 6-7 & n.1).

In practice

Under the New York rules as they stood at the time of the opinion, the committee held that the part-time-prosecutor bar is keyed to actually performing a prosecutorial function and to firm membership, neither of which the volunteer reviewers met. The opinion does not give blanket clearance: it expressly directs the inquirers to monitor for case-specific conflicts, and it notes the Rule 6.4 disclosure duty where committee "law reform" work would materially benefit a client. The firm-membership analysis turned on the specific facts (no pay, no control, no general case access, non-binding recommendations).

Common questions

Q: Is serving on a conviction integrity committee a prosecutorial role?

A: No. The opinion concludes that reviewing the strength of past convictions is not the prosecutorial function that is "inherently incompatible" with defense practice; a defense lawyer's skills suit the task (¶ 4).

Q: Does the DA's office's conflicts get imputed to the defense volunteers?

A: No, on these facts. Because the volunteers are not members of the DA's "firm" (unpaid, uncontrolled, no general case access, non-binding recommendations), Rule 1.10(a) imputation does not apply (¶ 5).

Q: Do the lawyers have any continuing obligations?

A: Yes. The committee directs them to watch for particular conflicts arising from committee work, and notes a Rule 6.4 disclosure duty if "law reform" committee work would materially benefit a client (¶ 6 & n.1).

Background and rules framework

The opinion interprets New York Rules 1.7(a) and (b) (conflicts), 1.0(h) and Comment [2] (definition of "firm"), 1.10 (imputation), and 6.4 (law-reform activities), corresponding to ABA Model Rules 1.7, 1.0, 1.10, and 6.4. The decisive questions are whether committee service is a prosecutorial role and whether the volunteers are members of the DA's "firm."

Citations and references

Rules of Professional Conduct:

• MR 1.7 / NY RPC 1.7(a), (b) (conflicts of interest)
• MR 1.10 / NY RPC 1.10 (imputation of conflicts within a firm)
• NY RPC 1.0(h) (definition of "firm")
• MR 6.4 / NY RPC 6.4 (law-reform activities)

Other opinions cited:

• N.Y. State 859 (2011): part-time prosecutor barred from criminal defense practice
• N.Y. State 564 (1984): ad hoc prosecutorial service does not trigger the bar
• N.Y. State 1036 (2014): fact-specific test for firm membership
• N.Y. City Bar Op. 1996-4: pro bono prosecutorial work and firm membership

See also

• NY State Bar Op. 1074: Part-time Social Services lawyer taking assigned-counsel cases
• NY State Bar Op. 1085: Conflict checks for parties known by street name

Source

• Landing page: https://nysba.org/ethics-opinion-1073/