Ezel / Ethics Opinions / NYSBA
NYSBA April 21, 1976

Can a part-time county district attorney represent a private client suing the county for civil damages?

Short answer: The opinion concluded that a part-time county prosecutor may not represent a private client in a civil damages action against the county, because the county is his client regardless of his criminal-only duties or the fact that a separate county attorney and the county's insurer defend the suit.

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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 Not binding precedent.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 held it improper for a part-time county prosecutor, whose official duties relate only to criminal matters, to act as trial counsel for a private client in a civil damages action against the county (DR 5-105(A); EC 5-14; EC 5-15). A lawyer who holds public office carries duties beyond those of a private practitioner, because the office may give access to confidential government files and exposes him to suspicion that he can influence other government representatives. More important, the committee said, dual representation of this kind undermines public faith that justice can be obtained through the legal system (DR 8-101, DR 9-101; EC 8-8, EC 9-1; Canon 9), quoting the special-sensitivity guidance of N.Y. State 392 (1975).

The committee rejected the argument that having only criminal authority, plus a separate county attorney for civil matters, cured the conflict. The crucial fact is that the prosecuting attorney's client is the county, and a lawyer may not sue his own client in an unrelated matter on another's behalf (N.Y. State 218 (1971)). Consent would generally be unavailing and, here, the county could not give it (N.Y. State 143 (1970)). The loyalty owed the county does not diminish because the county is defended by an insurer's attorney; the client in the litigation is the county, not the carrier (N.Y. State 73 (1968)).

The committee distinguished a different line of cases. A municipal attorney who lacks prosecutorial authority may sometimes defend private clients in criminal proceedings, because a prosecution is brought in the People's name and the prosecutor's duty is to seek justice, not merely to convict (EC 7-13). Defending an accused does not work against the municipality's interest. Affirmatively suing the county for damages does, so the part-time prosecutor's representation here was improper.

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 and the special conflicts of government lawyers by 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: Doesn't the prosecutor's criminal-only role keep him clear of a civil suit against the county?

A: No. The committee held that the prosecutor's client is the county itself, so suing the county on a private client's behalf is suing his own client, regardless of the criminal-only scope of his official duties (N.Y. State 218 (1971)).

Q: Does it matter that the county is defended by its insurance carrier's attorney?

A: Per the opinion, no. The client in the litigation is the county, not the insurer, so the prosecutor's loyalty to the county is undiminished (N.Y. State 73 (1968)).

Q: Could the county consent to the representation?

A: The committee said consent would generally be unavailing and that, in this situation, the county could not give it (N.Y. State 143 (1970)).

Q: Why may a municipal attorney sometimes defend criminal cases but not bring this civil suit?

A: The committee distinguished defending an accused, where the prosecutor's duty is to seek justice and the defense does not harm the municipality, from affirmatively suing the county for damages, which is contrary to the county's interest.

Background and rules framework

The opinion applies the then-current New York Code's conflict and public-office provisions, EC 5-14, EC 5-15, EC 7-13, EC 8-8, EC 9-1, DR 5-101(A) and (B), DR 5-105(A), DR 8-101, DR 9-101, and Canon 9, drawing on N.Y. State 392 (1975), 218 (1971), 143 (1970), and 73 (1968). The current analogues are Rule 1.7 (concurrent conflicts) and Rule 1.11 (special conflicts for government officers and employees).

Citations and references

Rules of Professional Conduct:

  • MR 1.7 (concurrent conflict of interest)
  • MR 1.11 (special conflicts for government lawyers)
  • NY EC 5-14, EC 5-15, EC 7-13, EC 8-8, EC 9-1; DR 5-101(A), (B); DR 5-105(A); DR 8-101; DR 9-101; Canon 9

Other opinions cited:

  • N.Y. State 392 (1975): special sensitivity of part-time public employment
  • N.Y. State 218 (1971): part-time prosecutor may not sue the city that is his client
  • N.Y. State 143 (1970): town attorney may not appear against the town; consent unavailing
  • N.Y. State 73 (1968): the client in the suit is the municipality, not its insurer

See also

Source

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