Ezel / Ethics Opinions / NYSBA
NYSBA 2022-03-17

Can a full-time assistant county attorney take private or assigned-counsel Family Court cases where the county is not a party?

Short answer: Yes, with limits. The opinion concludes such a lawyer may take Family Court matters where the county is not a party if no Rule 1.7(a) conflict exists or, if a waivable conflict exists, both the county and the client give informed written consent; quasi-criminal Family Court matters remain off limits.
Disclaimer: Advisory only. Not binding precedent.
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 at the bottom of this page) is the authoritative source for any reliance.

NYSBA Ethics Opinion 1238: A Full-Time County Attorney Taking Outside Family Court Cases

Short answer: The opinion concludes that a full-time assistant county attorney who defends the county in civil litigation may represent private or assigned-counsel clients in Family Court matters where the county is not a party, provided no conflict exists under Rule 1.7(a) or, if a waivable conflict exists, both the county and the client give informed written consent, and provided the matter is not a quasi-criminal Family Court proceeding subject to the per se bar.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York State Bar Association's view of New York's 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 is a full-time assistant county attorney who defends the county in civil litigation and, with the county attorney's permission, has begun a private practice. He declines any Family Court matter in which the county is a party and asks whether he may take Family Court cases, including 18-B assigned-counsel matters, where the county is not a party.

The opinion recounts the committee's per se rule barring a part-time prosecutor from defending any criminal matter in New York, but notes that in N.Y. State 800 (2006) and 1074 (2015) it declined to extend a flat ban to Family Court work, instead applying a facts-and-circumstances test. Certain proceedings remain off limits: matters involving law enforcement the lawyer works with, juvenile delinquency, PINS, and child abuse and neglect cases, because their defense function is treated as quasi-criminal. Outside those, propriety turns on the facts.

Because the inquirer's public work is entirely civil and no one in the County Attorney's Office appears in Family Court (the county is represented there by the Department of Social Services' Family Law Division), the opinion finds no per se bar, so each representation is governed by the facts-and-circumstances test. It flags a Rule 1.7(a)(2) personal-interest risk: the lawyer might pull punches in a Family Court case to avoid embarrassing county officials or antagonizing the county attorney. If such a conflict exists, Rule 1.7(b) allows the representation only with informed written consent from each affected client, and (per N.Y. State 1130 (2017)) the county may consent only where authorized and the process preserves public trust. The opinion adds three caveats: outside-employment statutes or local ethics codes may independently apply; Rule 1.11(f)(2) bars using public office to influence a tribunal; and the conclusion would change if the County Attorney's Office and the DSS Family Law Division are the same "firm" under Rule 1.0(h), which would impute the quasi-criminal per se bar through Rule 1.10(a). Whether they are one firm is a fact-intensive inquiry (public presentation, shared client information, independence of supervision).

In practice

Under this opinion, a full-time assistant county attorney may accept Family Court matters where the county is not a party, but must screen each one under the facts-and-circumstances test, avoid the quasi-criminal categories that are off limits, and obtain informed written consent from both the county and the client where a Rule 1.7(a)(2) conflict exists. Per the opinion, the lawyer must also confirm no statute or local ethics code bars the outside work, must not use public office to influence a tribunal, and must assess whether the County Attorney's Office and the DSS Family Law Division are one firm for imputation purposes.

Common questions

Q: Is a full-time county attorney barred outright from outside Family Court work?

A: Per the opinion, no, where the county's work is entirely civil; there is no per se bar, and each matter is judged on the facts and circumstances.

Q: Which Family Court matters are off limits?

A: Per the opinion, those involving law enforcement the lawyer works with, plus juvenile delinquency, PINS, and child abuse and neglect proceedings, which are treated as quasi-criminal.

Q: When is client consent required?

A: Per the opinion, when a Rule 1.7(a)(2) personal-interest conflict exists; then both the county and the Family Court client must give informed written consent under Rule 1.7(b), with the county's consent meeting the N.Y. State 1130 safeguards.

Q: Could the per se bar still reach this lawyer?

A: Per the opinion, yes, if the County Attorney's Office and the DSS Family Law Division are the same "firm" under Rule 1.0(h), in which case Rule 1.10(a) would impute the quasi-criminal bar.

Background and rules framework

The opinion interprets New York Rule 1.7(a) and (b) (concurrent conflicts and consent), Rule 1.11(f) (lawyers holding public office), Rule 1.10(a) (imputation), and the definition of "firm" in Rule 1.0(h) (which includes a government law office). Rules 1.7, 1.10, and 1.11 correspond to ABA Model Rules 1.7, 1.10, and 1.11.

Citations and references

Rules of Professional Conduct:

  • New York Rules of Professional Conduct 1.0(h), 1.7(a) & (b), 1.10(a), 1.11(f)
  • ABA Model Rules 1.7, 1.10, 1.11 (analogues)

Other opinions cited:

  • N.Y. State 800 (2006) and 1074 (2015): facts-and-circumstances test for part-time government lawyers in Family Court
  • N.Y. State 1130 (2017): conditions for government conflict waiver; N.Y. State 1219 (2021), 1210 (2020): single-firm analysis; N.Y. State 859 (2011): quasi-criminal Family Court roles

See also

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