NYSBA June 6, 2023

Can a county public defender's office hire the county's former district attorney, and how are conflicts handled?

Short answer: Yes. The opinion concludes a former DA may work as an assistant public defender in the same county but may not personally handle a matter in which he was personally and substantially involved as DA or holds confidential government information; such a conflict is not imputed to the whole office if the former DA is properly screened under Rule 1.11(b).

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This page answers the general question as of 2023. Ezel answers yours: whether it's allowed on your facts, under the current New York Rules of Professional Conduct, with citations.

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 Not binding precedent.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 on this page) is the authoritative source for any reliance.

Plain-English summary

A county public defender's office asked whether it may hire the county's former district attorney as a full-time assistant public defender who would work solely in Family Court, from a separate building, away from the lawyers handling criminal cases.

The opinion applies Rule 1.11, the special conflicts rule for former government lawyers. Under Rule 1.11(a)(2), the former DA may not personally represent a public defender client in a matter in which he participated personally and substantially as DA, absent the government agency's and the client's informed written consent; under Rule 1.11(a)(1) and Rule 1.9(c), he is also bound by the duty regarding former-client confidential information. The opinion explains that although the former DA's name appeared on all charging instruments in the county, that alone does not establish personal and substantial participation; the question turns on the factors set out in N.Y. State 748 (2001), such as supervisory role, knowledge of confidences, coverage for other prosecutors, being kept apprised of cases, and access to files. The former DA must apply those factors to each matter.

The opinion then explains that under Rule 1.11(b), where the former DA is disqualified, other lawyers in the office may take the matter if the office acts reasonably and promptly to notify personnel, implement effective screening, apportion no fee to the disqualified lawyer, and give written notice to the appropriate government agency, and there is no appearance of impropriety. Finally, the opinion explains Rule 1.11(c), which restricts the former DA's use of confidential government information and bars him from a matter where it could be used to a person's material disadvantage, while allowing other lawyers in the office to proceed if he is timely and effectively screened under the same conditions.

In practice

Under this opinion, a former district attorney may serve as an assistant public defender in the same county, but must himself decline any matter in which he was personally and substantially involved as DA (under the N.Y. State 748 factors) or in which he holds confidential government information that could be used to a person's material disadvantage. Per the opinion, such a conflict is not imputed office-wide, and another lawyer may handle the matter if the former DA is screened under Rule 1.11(b), with no fee to him and written notice to the agency.

Common questions

Q: Can a public defender's office hire the county's former DA?

A: Per the opinion, yes. A former district attorney may be employed as an assistant public defender in the same county.

Q: Which matters must the former DA personally avoid?

A: Per the opinion, any matter in which he participated personally and substantially as DA (assessed under the N.Y. State 748 factors), and any matter in which he holds confidential government information that could be used to a person's material disadvantage under Rule 1.11(c).

Q: Is the former DA's conflict imputed to the whole office?

A: Per the opinion, no, not if the office screens him effectively under Rule 1.11(b), notifies personnel, apportions him no fee, gives written notice to the agency, and there is no appearance of impropriety.

Background and rules framework

The opinion interprets New York Rule 1.11(a), (b), and (c) (special conflicts for former and current government lawyers), Rule 1.9(c) (former-client confidentiality), and Rule 1.0(l) (the definition of "matter"). These correspond to ABA Model Rules 1.11, 1.9, and 1.0.

Citations and references

Rules of Professional Conduct:

New York Rules of Professional Conduct 1.0(l), 1.9(c), 1.11(a)-(c)
ABA Model Rules 1.11, 1.9, 1.0 (analogues)

Other opinions cited:

N.Y. State 776 (2004): a former prosecutor may not defend an accused he prosecuted on the same charges
N.Y. State 748 (2001): factors for "personal and substantial participation"

Source

Landing page: https://nysba.org/ethics-opinion-1257/

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