Can a new district attorney's assistants prosecute cases that the DA defended as Legal Aid chief before taking office, if he screens himself off?

Plain-English summary

The committee considered a district attorney who, before his appointment, had been the chief attorney and attorney of record of the Legal Aid Society defending cases that were still pending. He proposed to disassociate himself completely and give his assistants full control. The committee held that assistant district attorneys act as the district attorney's representatives under his authority, so any ethical or legal limit on his authority to prosecute attaches to them (N.Y. State 227 (1972); DR 5-105(D); cf. People v. Wilkins, 28 N.Y.2d 53 (1971)). Because it would be improper for the district attorney himself to prosecute these cases, his assistants could not properly prosecute them either. The committee likened a district attorney's office to a law partnership: if one member is disqualified, all are.

The committee explained the source of the disqualification. As chief attorney and attorney of record, the district attorney was responsible for the operation of the defense organization and the disposition of its cases, which were defended in his name; that responsibility creates the appearance that he was aware of the confidences of those defendants. DR 9-101(B) bars a lawyer from accepting private employment in a matter in which he had substantial responsibility as a public employee, and EC 9-3 explains that taking such employment gives the appearance of impropriety even if none exists (see also Judiciary Law section 493 and DR 4-101(B), EC 4-6 on preserving confidences).

The committee concluded that, absent the defendant's waiver, the assistants may not prosecute these cases under the new district attorney's authority. It noted that special counsel or a member of another county's district attorney staff could be used, and that disqualification of a public prosecuting agency is ultimately a matter of law for the courts. Even if the staff were not disqualified as a matter of law, the district attorney has a minimal ethical duty to notify the defendant and the court of the facts. The committee later clarified this opinion in N.Y. State 492.

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 (former-government-lawyer conflicts are now governed by Rule 1.11, imputation by Rule 1.10, and former-client duties by Rule 1.9). 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 the new DA's assistants prosecute cases he defended as Legal Aid chief?

A: Under this opinion, no, absent the defendant's waiver. Assistants act under the district attorney's authority, so his disqualification is imputed to them (DR 5-105(D); N.Y. State 227 (1972)).

Q: Doesn't screening the DA off cure the problem?

A: Per the opinion, no. The committee held that the appearance of impropriety persists despite the district attorney's good-faith self-disqualification, because the office prosecutes in his name (EC 9-6).

Q: What can the office do instead?

A: The committee noted that special counsel may be employed, or a member of another county's district attorney staff used, and that the disqualification of a prosecuting agency is ultimately a question of law for the courts.

Background and rules framework

The opinion applies the then-current New York Code's conflict, imputation, and former-public-employee provisions, Canons 4, 5, and 9, EC 4-6, EC 9-3, EC 9-6, DR 4-101(B), DR 5-105(D), and DR 9-101(B), with Judiciary Law section 493, drawing on N.Y. State 227 (1972). The current analogues are Rule 1.11 (former and current government officers), Rule 1.10 (imputation), and Rule 1.9 (duties to former clients).

Citations and references

Rules of Professional Conduct:

• MR 1.11 (former and current government officers and employees)
• MR 1.10 (imputation of conflicts)
• MR 1.9 (duties to former clients)
• NY Canon 4, Canon 5, Canon 9; EC 4-6, EC 9-3, EC 9-6; DR 4-101(B), DR 5-105(D), DR 9-101(B)

Statutes:

• N.Y. Judiciary Law section 493; N.Y. County Law section 701 (special district attorney)

Cases:

• People v. Wilkins, 28 N.Y.2d 53 (1971): disqualification of a prosecuting agency
• United States v. Standard Oil Co., 139 F. Supp. 345 (S.D.N.Y. 1955): firm-wide disqualification

Other opinions cited:

• N.Y. State 227 (1972): a district attorney's office treated like a law partnership for imputation

See also

• NY State Bar Op. 427: Public officers in an indigent-defense plan
• NY State Bar Op. 462: A public defender's office and co-defendant conflicts
• NY State Bar Op. 502: A former assistant DA representing defendants

Source

• Landing page: https://nysba.org/opinion-419/