Ezel / Ethics Opinions / NYSBA
NYSBA October 5, 2016

If a firm partner is a part-time public defender, can another lawyer in that firm take assigned cases the public defender's office is conflicted out of?

Short answer: Not without informed written consent. A part-time public defender's conflicts run to the whole PD office and then are imputed across his private firm, so other firm lawyers are disqualified from cases the PD office cannot take.

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This page answers the general question as of 2016. Ezel answers yours: whether it's allowed on your facts, under the current New York Rules of Professional Conduct, with citations.

Currency note: this opinion is from 2016
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
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About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page) is the authoritative source for any reliance.

Plain-English summary

Lawyer A is "of counsel" to a firm and takes assigned family and criminal court matters, including cases the local public defender's office is conflicted out of. A firm partner, Lawyer B, recently took a part-time position with the county public defender's office, handling misdemeanors and violations in town and justice courts. The question is whether Lawyer A may keep taking the assigned cases.

The opinion runs the imputation in three steps under Rule 1.10(a), which disqualifies a firm from a representation any one of its lawyers could not take. First, within the public defender's office: assuming the office is structured as a single firm (a factual question), and given that a part-time assistant public defender is "associated" with it, the office's conflicts reach Lawyer B (¶ 9-10). Second, from the office to Lawyer B's private practice: where two firms share a common lawyer, a conflict is imputed to both, so Lawyer B in private practice cannot take what the PD office could not, unless waived (¶ 11-12). Third, from Lawyer B to Lawyer A: an "of counsel" lawyer is "associated" with the firm, so Lawyer B's disqualification is imputed to Lawyer A (¶ 13).

The committee rejected the proposed escape routes. That Lawyers A and B practice in different courts is irrelevant unless the office is organized into separate "firms" (¶ 14). New York does not recognize screening to cure conflicts except where the disqualification arises under Rules 1.11, 1.12, or 1.18, which this did not (¶ 15). The Rule 6.5 limited-pro-bono exception did not apply (¶ 16). A conflict can be waived under Rule 1.7(b) with informed consent from each affected client, but when seeking consent from a client receiving free legal services, the lawyer must be satisfied the consent is truly free (¶ 17-18).

In practice

The opinion holds that a part-time public defender carries the office's conflicts into his private firm, and Rule 1.10(a) then imputes them to every lawyer associated with that firm, including an "of counsel" lawyer. Practicing in different courts or on different case types does not break the imputation unless the office is actually organized as separate firms, and screening is unavailable because the conflict does not arise under Rule 1.11, 1.12, or 1.18. The path forward is a Rule 1.7(b) waiver with informed written consent from each affected client, with added care that an indigent client's consent is freely given.

Common questions

Q: Is a public defender's office a "firm" for conflict purposes?

A: The opinion assumes so for its analysis, noting prior opinions treat a county public defender's office as a single firm under Rule 1.10 even when its lawyers work independently (¶ 9).

Q: Does it help that the partner and the other lawyer handle different courts or charges?

A: No. The opinion states that practicing in different courts is irrelevant to imputation unless the office is organized so those matters are handled by different "firms" (¶ 14).

Q: Can screening avoid the imputed conflict?

A: No. New York does not recognize screening to cure conflicts except where the disqualification arises under Rule 1.11, 1.12, or 1.18, which is not the case here (¶ 15).

Q: Can the conflict be waived?

A: Yes, under Rule 1.7(b), with informed written consent from each affected client; the opinion adds that consent from a client receiving free legal services must be genuinely voluntary (¶ 17-18).

Background and rules framework

The opinion applies New York Rules 1.10 (imputation of conflicts; ABA Model Rule 1.10) and 1.7 (current-client conflicts; ABA Model Rule 1.7), with Rule 1.0, Comment [8] addressing the limited availability of screening. Rule 1.10(a) imputes one lawyer's Rule 1.7/1.8/1.9 disqualification to all lawyers associated in the firm.

Citations and references

Rules of Professional Conduct:

  • MR 1.10 / NY RPC 1.10(a), 1.10(b) (imputation of conflicts)
  • MR 1.7 / NY RPC 1.7(a), 1.7(b) (current-client conflicts and waiver)
  • NY RPC 1.0, Cmt. [8] (screening limited to Rules 1.11, 1.12, 1.18); NY RPC 6.5 (limited pro bono programs)

Cases:

  • Cinema 5, Ltd. v. Cinerama, Inc., 528 F.2d 1384 (2d Cir. 1976), conflict imputed where firms share a common lawyer

Other opinions cited:

  • N.Y. State 862 (2011): a part-time assistant public defender is "associated" with the office
  • N.Y. State 975 (2013), N.Y. State 1036 (2014): public defender office as a firm; multi-section imputation
  • N.Y. State 615 (1991): "of counsel" lawyer is "associated" with the firm

See also

Source

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