Can an assistant DA go into an outside, non-law business with a defense lawyer who appears against the DA's office, if he recuses from those cases?

Plain-English summary

An assistant district attorney asked whether he could enter a business unrelated to the practice of law with an attorney who defends criminal defendants in the same county, if the assistant removed himself entirely from prosecuting any defendant that attorney represented. The committee concluded the arrangement would be improper as violative of the Code, citing Canons 5 and 9 and EC 5-2, 9-2, 9-3, and 9-6. A business relationship between the assistant and a defense lawyer who appears against the assistant's own office creates an appearance of impropriety in violation of Canon 9.

The committee added that the "People" may not waive any conflict of interest that may exist, citing N.Y. State 364 (1974) and N.Y. State 323 (1974), so the business relationship would be improper regardless of consent. It also held that the assistant's removing himself from all cases involving his business partner as counsel does not change the result, citing N.Y. State 118 (1969) and N.Y. State 214 (1971).

The committee limited the opinion to the propriety of entering into the described relationship. It expressed no view, favorable or unfavorable, on the situation where the business relationship was established before the lawyer became an assistant 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 are now governed by Rule 1.7 and business dealings that create conflicts by Rule 1.8). 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 Treat this page as historical context, not current guidance.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 a prosecutor go into business with a defense lawyer who appears against his office?

A: Under this opinion, no. The committee held the business relationship improper under Canons 5 and 9 because it creates an appearance of impropriety.

Q: Does recusing from the partner's cases solve the problem?

A: Per the opinion, no. Removing himself from all cases involving his business partner as counsel does not change the result.

Q: Can the prosecution consent to or waive the conflict?

A: The committee held that the "People" may not waive a conflict of interest, citing N.Y. State 364 (1974) and N.Y. State 323 (1974).

Background and rules framework

The opinion applies Canons 5 and 9 of the then-current New York Code and EC 5-2, 9-2, 9-3, and 9-6, treating a prosecutor's outside business with opposing defense counsel as creating an appearance of impropriety the prosecution cannot waive. The current analogues are Rule 1.7 (concurrent conflicts) and Rule 1.8 (specific conflicts, including business arrangements), though current doctrine focuses on the conflict itself rather than the Code's former appearance-of-impropriety standard.

Citations and references

Rules of Professional Conduct:

• MR 1.7 (concurrent conflict of interest)
• MR 1.8 (specific rules; business transactions)
• NY Canon 5; Canon 9; EC 5-2, EC 9-2, EC 9-3, EC 9-6

Other opinions cited:

• N.Y. State 364 (1974): the People may not waive a conflict of interest
• N.Y. State 323 (1974): a lawful act may still violate the Code; non-waiver
• N.Y. State 118 (1969); N.Y. State 214 (1971): recusal does not cure the relationship

See also

• NY State Bar Op. 409: Spouses as assistant DA and assistant public defender
• 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-413/