Can a married couple both be lawyers in the same county, one an assistant DA and the other an assistant public defender?
Apply this to your situation
This page answers the general question as of 1975. Ezel answers yours: whether it's allowed on your facts, under the current New York Rules of Professional Conduct, with citations.
Plain-English summary
The committee addressed whether the spouse of an assistant district attorney could be employed in the same county as a part-time assistant public defender, a question it observed was arising more often as more women entered the profession and married lawyers. Drawing on the discussion of husband-and-wife lawyers in then-proposed ABA Formal Opinion 340, the committee reasoned that it should not be assumed a lawyer whose spouse is a lawyer will disobey the disciplinary rules, so it should not be assumed the assistant public defender would disclose the accused's confidences or secrets to his or her spouse contrary to DR 4-101.
It relied on N.Y. State 368 (1974), which held it not per se improper for a lawyer to represent a client against the county where the lawyer's spouse worked in the county attorney's office, but cautioned that the lawyer must take special care not to accept employment giving rise to any suspicion that the client could gain advantage from the spousal relationship, in violation of Canon 9 or DR 9-101(C). That concern is heightened where the spouse is the responsible official, and the spouses should not appear on opposite sides of the same matter.
Applying those principles, the committee concluded an assistant district attorney may prosecute in courts where an assistant-public-defender spouse represents the accused generally. But because prosecution puts the accused's freedom at stake, it would present an appearance of impropriety, and would be improper, for an assistant public defender to represent an accused being prosecuted by his or her own spouse. The committee also cited N.Y. State 336 (1974), which found it not per se improper for a firm to defend criminal cases after a relative of a firm member became district attorney.
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 involving related lawyers are now addressed under Rule 1.7 and confidentiality under Rule 1.6). 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 spouses hold opposing criminal-law roles, one prosecuting and one defending, in the same county?
A: Under this opinion, yes in general. The committee declined to presume that married lawyers would breach the disciplinary rules, so a spouse of an assistant DA could serve as an assistant public defender in the same county.
Q: What is the one thing they may not do?
A: Per the opinion, an assistant public defender may not represent an accused being prosecuted by his or her own spouse; that direct opposition presents an appearance of impropriety under Canon 9.
Q: Did the committee worry about confidences passing between the spouses?
A: It addressed the concern but declined to assume a breach, reasoning under DR 4-101 that a lawyer should not be presumed to disclose a client's confidences or secrets to a lawyer spouse.
Background and rules framework
The opinion applies Canon 9, EC 5-2, DR 4-101, and DR 9-101(C) of the then-current New York Code, drawing on N.Y. State 368 (1974), N.Y. State 336 (1974), and then-proposed ABA Formal Opinion 340. The current analogues are Rule 1.7 (conflicts, including conflicts arising from a lawyer's relationship with opposing counsel) and Rule 1.6 (confidentiality).
Citations and references
Rules of Professional Conduct:
- MR 1.7 (concurrent conflict of interest)
- MR 1.6 (confidentiality of information)
- NY Canon 9; EC 5-2; DR 4-101; DR 9-101(C)
Other opinions cited:
- N.Y. State 368 (1974): representing a client against the county where a spouse works for the county attorney
- N.Y. State 336 (1974): firm defending criminal cases after a relative became district attorney
- ABA Formal Opinion 340 (then proposed): husband-and-wife lawyers
See also
- NY State Bar Op. 413: A prosecutor's outside business with defense counsel
- NY State Bar Op. 419: A new DA who was the local Legal Aid chief
- NY State Bar Op. 437: Office-sharing with an assistant DA
Source
- Landing page: https://nysba.org/opinion-409/
Get today's answer for your situation
You just read a 1975 opinion on this question. Ezel checks the current New York Rules of Professional Conduct and answers your specific situation, with citations.
Opens in Ezel Pro. Every answer cites the rules it relies on.