Can a lawyer who shares office space with an assistant district attorney still defend criminal cases in that county?

Plain-English summary

The committee was asked whether an attorney who shares office space with an assistant district attorney, but has no partnership or arrangement to share fees or business with him, may practice criminal law in the county for which the assistant DA was appointed.

The committee began from the settled point that a partner or associate of an assistant district attorney could not represent criminal defendants in the courts where the DA's office prosecutes. To avoid an appearance of impropriety (EC 9-6), it had normally held that a lawyer sharing office space should be disqualified to the same extent as a partner or associate (N.Y. State 65(a) (1970)), reasoning grounded in the need to promote public confidence in the administration of justice (N.Y. State 29 (1966)).

The committee reinforced the point by reference to N.Y. State 413 (1975), which held it improper for an assistant district attorney to enter a business relationship with an attorney who defends clients the DA's office prosecutes; the appearance of impropriety, it said, would be even greater where the assistant DA shares office space with the criminal-defense lawyer. The shared space therefore disqualified the inquiring lawyer from criminal practice in that county.

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; the freestanding "appearance of impropriety" standard of former Canon 9 was not carried forward as a separate test). 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 Treat this page as historical context, not current guidance.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: Does merely sharing an office with a prosecutor create a conflict?

A: Under this opinion, yes, for criminal practice in that prosecutor's county. The committee held an office-sharer is disqualified to the same extent as a partner to avoid the appearance of impropriety.

Q: Does it matter that there was no fee- or business-sharing?

A: Per the opinion, no. The committee applied the office-sharing disqualification even absent any partnership or fee arrangement, resting on appearances and public confidence (EC 9-6).

Q: Could the lawyer practice criminal law elsewhere?

A: The disqualification the committee described was tied to the county for which the assistant district attorney was appointed; the opinion addressed criminal practice in that county.

Background and rules framework

The opinion rests on EC 9-6 of the then-current New York Code (the duty to avoid even the appearance of impropriety) as applied to office-sharing arrangements with prosecutors, following N.Y. State 65(a) (1970) and N.Y. State 413 (1975). The current Model Rule analogues are Rule 1.7 (conflicts of interest) and Rule 1.11 (special conflicts for government lawyers); modern doctrine analyzes such situations through concrete conflict and imputation rules rather than a standalone appearance-of-impropriety test.

Citations and references

Rules of Professional Conduct:

• MR 1.7 (concurrent conflict of interest)
• MR 1.11 (special conflicts for government lawyers)
• NY EC 9-6

Other opinions cited:

• N.Y. State 65(a) (1970); N.Y. State 29 (1966): office-sharer disqualified to the same extent as a partner
• N.Y. State 413 (1975): assistant DA may not enter a business relationship with a defense lawyer he prosecutes against

See also

• NY State Bar Op. 502: A former assistant DA representing defendants
• NY State Bar Op. 564: A part-time prosecutor's conflict and the special DA
• NY State Bar Op. 462: A public defender's conflict among co-defendants

Source

• Landing page: https://nysba.org/opinion-437/