Ezel / Ethics Opinions / NYSBA

Can a lawyer who serves on a state criminal-investigation agency also defend criminal cases in private practice, even in another jurisdiction?

Short answer The opinion concluded that a member of a state investigation agency charged with enforcing the criminal laws may not defend criminal matters in private practice, even in another jurisdiction, because the role is like a prosecutor's and creates a conflict and an appearance of impropriety.
Bar
NYSBA
Issued
June 10, 1975

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This page answers the general question as of 1975. Ask about yours and see what the current New York Rules of Professional Conduct say for your facts, 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 Not binding precedent.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 lawyer who was a member of a state investigation agency charged with investigating and enforcing the criminal laws asked whether he could defend criminal matters in private practice. The committee said no. It characterized the agency as a public law-enforcement body encompassing many functions of a public prosecutor, investigating matters and making policy decisions involving law-enforcement agencies, prosecutors, and other public officials. A public prosecutor is barred from representing criminal defendants both because of the possible conflict that may impair independent professional judgment and because a lawyer should avoid even the appearance of impropriety (DR 5-105; Canon 9; EC 9-2; EC 8-8).

The committee held that the bar applied even where the agency member would defend criminal matters in other jurisdictions, in federal court, or on appeal. It reasoned that prosecutors receive cooperation from police and from prosecuting attorneys in other cities and counties, a practice that benefits the administration of criminal justice; if a prosecutor or investigation-agency member defended criminals, even elsewhere, that cooperation might be withdrawn. The public might also presume influence or conflict in seeing an agent of the state oppose the state, and the agency member's own attitude toward defense work might become detrimental to his enforcement duties (ABA 30 (1931)).

Treating the agency member's position as similar to that of a prosecutor or county attorney performing like functions, the committee aligned the result with recent opinions finding it improper for a county attorney to represent a criminal defendant (N.Y. State 257 (1972); N.Y. State 367 (1974); cf. ABA Inf. 1285 (1974)).

Currency note

This opinion was issued in 1975, before New York replaced the Code of Professional Responsibility with the Rules of Professional Conduct in 2009; conflicts of this kind are now analyzed under Rule 1.7 and the rules on current and former government lawyers in Rule 1.11. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can someone who works for a state criminal-investigation agency moonlight as a criminal defense lawyer?

A: Under this opinion, no. The committee treated the agency role as equivalent to a prosecutor's and held that defending criminals while serving on the agency is improper.

Q: Does it help if the defense work is in a different jurisdiction or only on appeal?

A: Per the opinion, no. The committee said the bar applied even where the defense work was in another jurisdiction, in federal court, or in appellate courts.

Q: What was the committee's concern beyond a direct conflict?

A: It pointed to the appearance of impropriety in an agent of the state opposing the state, the risk that inter-agency cooperation would be withdrawn, and the danger that defense work would shape an attitude detrimental to the lawyer's enforcement duties.

Background and rules framework

The opinion applied DR 5-105 (declining employment that may impair independent judgment), Canon 9 (avoiding the appearance of impropriety), and EC 8-8 and 9-2 of the then-current New York Code. The current analogues are Rule 1.7 (concurrent conflicts of interest) and Rule 1.11 (special conflicts for current and former government officers and employees), which govern the prosecutor-defense tension the opinion addressed.

Citations and references

Rules of Professional Conduct:

  • MR 1.7 (conflict of interest; current clients)
  • MR 1.11 (special conflicts for government lawyers)
  • NY Canon 9; DR 5-105; EC 8-8, EC 9-2

Other opinions cited:

  • ABA 30 (1931): a prosecutor should not defend criminal matters
  • N.Y. State 257 (1972); N.Y. State 367 (1974): a county attorney may not represent a criminal defendant

See also

Source

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