Can a part-time county Department of Social Services lawyer also take assigned-counsel criminal and Family Court cases?

Plain-English summary

A part-time county Department of Social Services attorney handled paternity, child support, liens, Medicaid, and guardianship matters, and occasionally assisted on child abuse and neglect cases. The same attorney ran a solo practice taking County Assigned Counsel Program appointments to represent indigent people in criminal and Family Court matters, but did not intend to accept child abuse and neglect assignments. The inquiry asked whether the attorney could keep accepting those assignments (¶¶ 1-2).

The committee built on its part-time-prosecutor line of opinions. In N.Y. State 859 (2011), it treated a Social Services attorney prosecuting abuse and neglect cases as comparable to a prosecutor, creating a non-waivable Rule 1.7 conflict with criminal defense work (¶ 3). In N.Y. State 800 (2006), it declined a per se rule against a part-time prosecutor taking Family Court assignments in an adjacent county, but identified off-limits categories: matters involving law-enforcement officials the lawyer works with, juvenile delinquency, and PINS cases, and it applied a facts-and-circumstances test (¶ 4).

Applying the same test here, the committee said the Rules do not invariably bar a Social Services lawyer from, for example, defending an indigent person in a traffic matter, nor from a Family Court matter in which the Department has no involvement (¶ 5). The attorney's choice to decline abuse and neglect cases was well-advised and compelled, and Rule 1.10 imputation means the attorney's conflicts could disqualify the Department's entire legal unit (¶ 6). For other Family Court work, the answer depends on the facts: because the Family Court is the central venue for Department-jurisdiction disputes, the lawyer should decline any matter in which the Department plays a meaningful role, but may appear where it does not (¶¶ 7-8). The same facts-and-circumstances analysis applies to criminal assignments under Rule 1.7(b): the lawyer must reasonably believe he can provide competent and diligent representation, which is possible where the matter does not involve the Department's jurisdiction or law-enforcement officials the lawyer works with, and informed written consent from both the Department and the client is essential (¶¶ 9-10).

In practice

Under the New York rules as they stood at the time of the opinion, the committee adopted a facts-and-circumstances test rather than a flat ban. The opinion's operative lines are that the lawyer must decline any matter in which the Department plays a meaningful role or that requires cross-examining law-enforcement officials the lawyer currently works with, that child abuse and neglect cases are off-limits, and that informed written consent from both the Department and the client is essential to any permitted assignment. Imputation under Rule 1.10 raises the stakes: a misjudgment could disqualify the Department's whole legal unit.

Common questions

Q: Is a part-time Social Services lawyer flatly barred from criminal defense work?

A: No. The committee applied a facts-and-circumstances test, concluding the Rules do not invariably forbid, for example, defending an indigent person in a matter unconnected to the Department or to law-enforcement officials the lawyer works with (¶¶ 5, 10).

Q: Which assignments must the lawyer decline?

A: Any matter in which the Department plays a meaningful role, child abuse and neglect cases, and matters requiring cross-examination of law-enforcement officials the lawyer currently works with (¶¶ 6-7, 10).

Q: Is consent required?

A: Yes. The committee concluded that informed consent of both the Department of Social Services and the client, confirmed in writing, is essential to any permitted undertaking (¶ 10).

Background and rules framework

The opinion interprets New York Rules 1.7(a) and (b) (concurrent conflicts and the conditions for consent), 1.8(f) (compensation from a third party), 1.10(a) (imputation), and 1.0(h) (definition of "firm," extended to a government legal unit), corresponding to ABA Model Rules 1.7, 1.8, 1.10, and 1.0. The analysis turns on whether the Department is materially involved in a given matter and on the imputation of the lawyer's conflicts to the Department's legal unit.

Citations and references

Rules of Professional Conduct:

• MR 1.7 / NY RPC 1.7(a), (b) (conflicts; consent conditions)
• MR 1.8 / NY RPC 1.8(f) (third-party compensation)
• MR 1.10 / NY RPC 1.10(a) (imputation)
• NY RPC 1.0(h) (definition of "firm")

Other opinions cited:

• N.Y. State 859 (2011): Social Services prosecution role treated like a prosecutor
• N.Y. State 800 (2006): facts-and-circumstances test; off-limits categories
• N.Y. State 975 (2013): imputation in a Public Defender's office

See also

• NY State Bar Op. 1073: Defense counsel on a District Attorney's conviction integrity committee
• NY State Bar Op. 1085: Conflict checks for parties known by street name

Source

• Landing page: https://nysba.org/ethics-opinion-1074/