Can an assistant public defender share office space with a village justice whose court the defender's office appears in?

Plain-English summary

The committee was asked whether an assistant public defender may share office space with a village justice. It answered no on the facts presented, while reaffirming that office-sharing with a judge is not inherently improper.

The committee restated its rule from N.Y. State 65(a) (1970): a lawyer who shares office space with a part-time judge may not practice in that judge's court, or before another judge of the same court, just as a partner or associate of the judge could not. The prohibition rests on the need to promote public confidence in the administration of justice by avoiding the appearance of impropriety (EC 9-1, EC 9-6, DR 9-101(C)). "Sharing office space" includes any arrangement between persons who are neither partners nor associates for sharing space or services in the same office or suite (N.Y. State 437 (1976)).

Although the particular assistant public defender did not personally appear in the justice court, other members of the staff did. The committee explained that a public defender's staff, like a district attorney's, is treated like a partnership in private practice for applying Canons 5 and 9 (N.Y. State 260 (1972); N.Y. State 492 (1978); N.Y. State 313 (1973)), so under DR 5-105(D) what is prohibited to one staff member is generally prohibited to all. Because the public defender and other staff appear in justice court, the rule barring them from sharing space with the village justice reaches every member of the regular staff. The committee noted one exception: a lawyer appointed as special counsel where the public defender and regular staff are disqualified, often titled "assistant public defender," is not barred from sharing space with that judge, though any appearance by special counsel in that court would itself be improper. 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 (imputation of conflicts is now governed by Rule 1.10). The Code's Canon 9 "appearance of impropriety" standard on which this opinion rests was not carried forward as a standalone rule in the current Rules of Professional Conduct. 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 Treat this page as historical context, not current guidance.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: Is it always improper for a lawyer to share office space with a judge?

A: Under this opinion, no. The committee held office-sharing with a judge is not inherently improper; the problem arises when the lawyer (or, by imputation, the lawyer's office) practices in that judge's court.

Q: Why did one assistant's situation depend on the rest of the staff?

A: Because the committee treats a public defender's office like a partnership. Since other staff appear before the village justice, DR 5-105(D) extends the office-sharing bar to every member of the regular staff.

Q: Was there any exception?

A: Yes. Special counsel appointed when the public defender's regular staff is disqualified may share space with the judge, though that special counsel still may not appear in the judge's court.

Background and rules framework

The opinion applied DR 5-105(D) (imputed disqualification, treating the public defender's office like a partnership) together with Canon 9's appearance-of-impropriety standard (EC 9-1, EC 9-6, DR 9-101(C)) to office-sharing with a judge. The current Model Rule analogue for the imputation point is Rule 1.10; the Model Rules contain no standalone "appearance of impropriety" rule.

Citations and references

Rules of Professional Conduct:

• MR 1.10 (imputation of conflicts of interest)
• NY Canon 9; EC 9-1, EC 9-6; DR 5-105(D), DR 9-101(C)

Other opinions cited:

• N.Y. State 65(a) (1970): a lawyer sharing office space with a judge may not practice in that judge's court
• N.Y. State 260 (1972) and 313 (1973): a public defender's or DA's office treated like a partnership
• N.Y. State 462 (1977): special counsel where the regular staff is disqualified

See also

• NY State Bar Op. 502: Former assistant DA representing defendants
• NY State Bar Op. 511: Lawyer appearing before a judge he represented
• NY State Bar Op. 506: A public lawyer taking the same matter privately

Source

• Landing page: https://nysba.org/opinion-497/