Ezel / Ethics Opinions / NYSBA
NYSBA February 25, 1976

Which public officers and their firms can accept assigned counsel work defending indigent criminal defendants under a county Article 18-B plan?

Short answer: The opinion concluded that the plan's administrator, assistant district attorneys, county attorneys, county board members, probation officers, and their partners may not take Article 18-B assignments, while town and village attorneys and their firms may, in the limited circumstances where they may otherwise practice criminal law.

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This page answers the general question as of 1976. Ezel answers yours: whether it's allowed on your facts, under the current New York Rules of Professional Conduct, with citations.

Currency note: this opinion is from 1976
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
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 Not binding precedent.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

The committee weighed two pulls in the Code. Lawyers are encouraged to help provide counsel to indigent criminal defendants (EC 2-25; EC 2-29), but Canon 5 requires guarding against conflicts and Canon 9 requires avoiding even the appearance of impropriety. Whether a particular public officer may take an Article 18-B assignment to defend an indigent depends on reconciling those duties.

The committee held that assistant district attorneys, the county attorney and assistant county attorneys, and members of the county board of supervisors may not take such assignments. Prior opinions had barred these officers from private criminal practice generally (N.Y. State 40 (1966); 257 (1972); 424 (1975)), and assigned indigent-defense work falls within that bar. Their partners and associates are disqualified too under DR 5-105(D) (N.Y. State 426 (1976)). The plan's administrator is likewise barred, by analogy to N.Y. State 426 (1976), which held an attorney who directs a referral service may not take its referrals. Probation officers may not participate either, because a probation officer represents the authority of the State and cannot represent a person being prosecuted by a public authority.

The committee treated town and village attorneys differently. They may practice criminal law without conflict where (1) they have no statutory or related responsibility for criminal prosecution on the municipality's behalf, (2) they do not represent private clients before the town justice of the town they serve, and (3) no violation or construction of a town ordinance is involved (N.Y. State 315 (1972); 234 (1972)). In those circumstances, they and their partners and associates may participate in the county's indigent-defense plan.

Currency note

This opinion was issued in 1976, 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, government-lawyer conflicts by Rule 1.11, and imputation by Rule 1.10). The committee later modified this opinion in N.Y. State 544. 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 an assistant district attorney take an Article 18-B assignment to defend an indigent?

A: Under this opinion, no. Assistant district attorneys are barred from private criminal practice generally, and assigned indigent-defense work falls within that bar (N.Y. State 40 (1966); 424 (1975)).

Q: Are the officer's partners and associates also disqualified?

A: Yes. The committee applied DR 5-105(D): where the officer is disqualified, his partners and associates are too (N.Y. State 426 (1976)).

Q: Can a town or village attorney take an assignment?

A: Per the opinion, yes, in the limited circumstances where they may otherwise practice criminal law: no responsibility for the municipality's prosecutions, no private appearances before the town justice of the town they serve, and no town ordinance at issue.

Q: Why are probation officers excluded?

A: The committee reasoned that a probation officer represents the authority of the State and therefore cannot represent someone being prosecuted by a public authority.

Background and rules framework

The opinion applies the then-current New York Code's conflict and imputation provisions, Canon 5, Canon 9, EC 2-25, EC 2-29, and DR 5-105(D), to participation in a County Law Article 18-B assigned-counsel plan, drawing on N.Y. State 40 (1966), 234 (1972), 315 (1972), 424 (1975), and 426 (1976). The current analogues are Rule 1.7 (concurrent conflicts), Rule 1.11 (government-lawyer conflicts), and Rule 1.10 (imputation).

Citations and references

Rules of Professional Conduct:

  • MR 1.7 (concurrent conflict of interest)
  • MR 1.11 (special conflicts for government lawyers)
  • MR 1.10 (imputation of conflicts)
  • NY Canon 5, Canon 9; EC 2-25, EC 2-29; DR 5-105(D)

Statutes:

  • N.Y. County Law Article 18-B (assigned counsel for indigent defendants)

Other opinions cited:

  • N.Y. State 424 (1975); N.Y. State 40 (1966); N.Y. State 257 (1972): bar on private criminal practice by prosecutorial and county officers
  • N.Y. State 426 (1976): firm-wide imputation under DR 5-105(D)
  • N.Y. State 315 (1972); N.Y. State 234 (1972): when town and village attorneys may practice criminal law

See also

Source

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