Can a lawyer in the firm where the newly elected district attorney was once a partner represent criminal defendants the DA's office is prosecuting?
NY State Bar Ethics Opinion 1119: Defending cases prosecuted by the DA's former firm
Short answer: A lawyer in the firm where a newly elected district attorney was formerly a partner may represent criminal defendants prosecuted by that DA's office, provided the DA has severed all ties with the firm and a reasonable lawyer would not conclude there is a significant risk that the prior relationship will adversely affect the lawyer's professional judgment. If such a personal-interest conflict exists, the lawyer may proceed only if it is consentable and each affected client gives informed consent confirmed in writing.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York Rules of Professional Conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.
About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.
Plain-English summary
The inquirer practices at a firm where the county's newly elected district attorney was once a partner. The DA position is full-time, and the DA no longer works at the firm. The inquirer wants to represent criminal defendants in that county and asks whether the prior firm relationship bars it.
The committee analyzes the inquirer's own conduct under Rule 1.7(a)(2): a lawyer may not represent a client where a reasonable lawyer would conclude there is a significant risk that the lawyer's professional judgment will be adversely affected by the lawyer's personal interests, here the personal relationship as a former associate of the now-DA. If a reasonable lawyer would not reach that conclusion, there is no conflict and the inquirer may proceed without any client consent. If a reasonable lawyer would find a significant risk, a Rule 1.7(a)(2) conflict exists, and the inquirer may take the matter only if the conflict is consentable under Rule 1.7(b)(1), meaning the lawyer reasonably believes she can provide competent and diligent representation and the representation is not prohibited by law, with each affected client's consent confirmed in writing under Rule 1.0(c).
The committee separately notes the rules governing the DA. Rule 1.11(d)(1) bars a lawyer in public office from participating in a matter in which the lawyer participated personally and substantially in private practice; the inquiry does not indicate the DA worked on any of the inquirer's matters, so that is assumed not to be implicated (citing N.Y. State 638). Critically, the committee distinguishes its part-time-prosecutor line of opinions (N.Y. State 1073, 859, 544), which bar a part-time prosecutor and the prosecutor's firm from defending criminal matters anywhere in the state. Those do not apply here because this DA is full-time and has severed all ties with the inquirer's firm.
In practice
Under this opinion, a New York lawyer at the firm where a full-time district attorney formerly practiced may defend criminal cases the DA's office prosecutes, so long as the DA has cut all ties with the firm and the inquirer concludes, as a reasonable lawyer would, that the former relationship poses no significant risk to her professional judgment under Rule 1.7(a)(2). Where a significant risk does exist, the representation is permitted only if the conflict is consentable and each affected client gives informed written consent. This situation is governed by the personal-interest conflict rule, not by the stricter part-time-prosecutor opinions that disqualify a part-time prosecutor's whole firm statewide, because the DA here is full-time and no longer affiliated with the firm.
Common questions
Q: Can a lawyer defend criminal cases when the prosecuting DA used to be a partner at the lawyer's firm?
A: Yes, if the DA has fully severed ties with the firm and a reasonable lawyer would not find a significant risk that the prior relationship will adversely affect the lawyer's judgment under Rule 1.7(a)(2) (Opinion 1119 ¶¶ 5-6, 12).
Q: Does the firm need to get client consent?
A: Only if a Rule 1.7(a)(2) conflict exists. Then the lawyer may proceed only if the conflict is consentable and each affected client's consent is confirmed in writing under Rule 1.0(c) (¶¶ 7-8).
Q: Why doesn't the part-time prosecutor disqualification apply?
A: Those opinions bar a part-time prosecutor and the prosecutor's firm from defending criminal matters statewide. They do not apply here because the district attorney is full-time and has severed all ties with the inquirer's firm (¶ 11).
Background and rules framework
The opinion applies Rule 1.7 (Model Rule 1.7) on personal-interest conflicts and consent, with Rule 1.0(c) defining "confirmed in writing." It also references Rule 1.11(d) (Model Rule 1.11) on a current public officer's restrictions and Rule 8.3 on the inquirer's possible reporting obligations regarding the DA's conduct.
Citations and references
Rules of Professional Conduct:
- New York Rule 1.7(a)(2), (b) (Model Rule 1.7): significant-risk personal-interest conflict; consent
- New York Rule 1.0(c): "confirmed in writing"
- New York Rule 1.11(d) (Model Rule 1.11): current public officer's restrictions
- New York Rule 8.3: reporting another lawyer's misconduct
Other opinions cited:
- N.Y. State 638 (1992): newly elected DA prosecuting a former firm's client
- N.Y. State 1073 (2015); 859 (2011); 544 (1982): part-time prosecutor and firm disqualified statewide
See also
- NY State Bar Op. 1148: Former government lawyer adverse to a former employer
- NY State Bar Op. 1149: Agency-shop lawyer prosecuting discipline against union members
- NY State Bar Op. 1130: Town attorney's firm and a zoning applicant
Source
- Landing page: https://nysba.org/ethics-opinion-1119/