Can a part-time DA or staff prosecute a defendant the DA and an assistant had defended in private practice?

Plain-English summary

A part-time district attorney and one of his two assistants had represented a defendant in private practice in several criminal matters, one of which remained pending on appeal in the Court of Appeals when the DA took office. The same person then faced a new felony charge brought after the election. The defendant would, if asked, waive any right to disqualify his former counsel. The committee broke the question into three issues: whether the DA and the assistant were disqualified, whether disqualification reached the rest of the staff, and whether the defendant's waiver could cure it. It answered that the DA and staff could not act.

On the first issue, the committee held it improper for the DA and the assistant who had defended the person to handle either the appeal or the new felony charge. The risk of speculation reflecting on their integrity in opposing a former client was, by itself, enough to preclude their involvement, because a favorable result would tend to diminish public confidence in the office and the criminal justice system (EC 9-2). The committee stressed the DA's unique role, whose duty is to see that justice is done rather than simply to convict (EC 7-13), and the broad discretion that makes prosecution of a recent private client an unacceptable risk of bias. Independent of the office's special character, both lawyers would be disqualified from the appeal under the rule against switching sides in litigation, and from the new charge because no lawyer may oppose a former client where information from the prior representation might be used to that client's detriment (EC 4-5, EC 4-6, DR 4-101(B)).

On the second issue, given the small size of the office, the committee extended disqualification to the entire staff, requiring appointment of special counsel under County Law section 701. Quoting N.Y. State 419 (1975), it analogized the DA's office to a law firm: if one member is disqualified, all are (DR 5-105(D)), and the small staff could not credibly screen the disqualified lawyers. On the third issue, the committee clarified its earlier opinions N.Y. State 227 and 419: where disqualification rests only on possible use of client confidences, the client can waive it (DR 4-101(C)(1)), but where it rests on the public interest in avoiding impropriety or its appearance (EC 9-1, EC 9-2), waiver is ineffective. Because the disqualification here rested on those broader grounds, the defendant could not absolve the DA and assistant. The question was answered in the negative.

Currency note

This opinion was issued in 1978, before New York replaced the Code of Professional Responsibility with the Rules of Professional Conduct in 2009 (duties to former clients are now governed by Rule 1.9, the conflicts of former and current government lawyers by Rule 1.11, and imputation by Rule 1.10). The Code's general "appearance of impropriety" standard (Canon 9) was not carried forward into the Rules in the same form. 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 part-time DA prosecute someone he defended in private practice?

A: Under this opinion, no. The committee held it improper for the DA and the assistant who had defended the person to prosecute or oppose that former client, both on conflict grounds and because of the appearance of impropriety.

Q: Does the conflict reach the other prosecutors in the office?

A: Yes, in a small office. The committee extended disqualification to the entire staff and required appointment of special counsel under County Law section 701, analogizing the office to a law firm where one member's disqualification is imputed to all.

Q: Can the defendant waive the conflict so his former lawyer can prosecute him?

A: No, on these facts. The committee held that waiver works only where the disqualification rests solely on possible use of client confidences; where it rests on the public interest in avoiding the appearance of impropriety, the defendant's waiver is ineffective.

Background and rules framework

The opinion applies the duty not to oppose a former client where prior-representation information could be used against him (EC 4-5, EC 4-6, DR 4-101(B)), the prosecutor's duty to seek justice (EC 7-13), Canon 9's avoidance of impropriety and its appearance (EC 9-1, EC 9-2), the waiver provision of DR 4-101(C)(1), and the imputation rule of DR 5-105(D), together with County Law section 701 on special prosecutors. The current Model Rule analogues are Rule 1.9 (duties to former clients), Rule 1.11 (former and current government officers and employees), and Rule 1.10 (imputation of conflicts).

Citations and references

Rules of Professional Conduct:

• MR 1.9 (duties to former clients)
• MR 1.11 (special conflicts for former and current government officers and employees)
• MR 1.10 (imputation of conflicts of interest)
• NY EC 4-5, EC 4-6, EC 7-13, EC 9-1, EC 9-2; DR 4-101(B), DR 4-101(C)(1), DR 5-105(D)

Statutes:

• N.Y. County Law section 701 (appointment of a special district attorney)

Other opinions cited:

• N.Y. State 227 (1972) and N.Y. State 419 (1975): clarified on the role of waiver and staff-wide disqualification
• N.Y. State 410 (1975), N.Y. State 329 (1974), N.Y. State 303 (1973): switching sides and opposing former clients
• ABA Formal Op. 342 (1972): disqualification of former government lawyers

See also

• NY State Bar Op. 502: When a former assistant DA may join the defense bar
• NY State Bar Op. 497: Assistant public defender sharing an office with a village justice
• NY State Bar Op. 506: Assistant county attorney's later private case

Source

• Landing page: https://nysba.org/opinion-492/