Can a former assistant DA, now in private criminal defense, represent defendants his old office charged, and is his firm disqualified?

Plain-English summary

A criminal-defense firm hired a former assistant district attorney. The committee was asked (1) whether the firm could continue representing defendants indicted during the assistant's tenure at the DA's office, where he had no access to confidential information and took no part in their prosecution, and (2) whether it could take on a defendant arrested after his departure but whom he had known, while in office, to be the subject of a police investigation into the relevant incidents. The committee answered both yes, subject to qualifications.

For the first question, the committee revisited N.Y. State 313 (1973), which had read DR 9-101(B) ("a lawyer shall not accept private employment in a matter in which he had substantial responsibility while he was a public employee") to treat an assistant DA as having substantial responsibility for every matter resulting in an indictment during his service. That mechanical rule was easy to apply and dispelled doubt about access to non-public information, but the committee concluded the public's confidence in criminal justice could be served by a more carefully defined and less career-restrictive rule. It modified N.Y. State 313 to disqualify a former assistant only where he had access to confidential or non-public information about the matter, or where the office's size and his role reasonably suggest such access. Drawing on ABA 342 (1975), the committee explained that "substantial responsibility" means heavy involvement in the investigative or deliberative process, not mere nominal office; where a former assistant clearly had no responsibility and no access to relevant information (as on the first question's facts, where the firm already represented the accused before he joined), neither he nor his partners are disqualified (DR 5-105(D)).

For the second question, the committee held the former assistant was disqualified. Although he had no responsibility for the police investigation, he had gained relevant confidential or non-public information through his employment, so representing an adverse party would offend Canon 4's protection of a former client's confidences coupled with his duties of zealous representation and avoiding the appearance of impropriety (DR 4-101(B), DR 5-101(A), DR 7-101(A); EC 4-5, 4-6, 9-3, 9-6). On imputation, the committee followed ABA 342's view that inflexibly extending DR 5-105(D) to the whole firm would thwart the policies behind DR 9-101(B), and held that so long as the disqualified assistant is screened and has not shared the information with the firm, his partners may undertake the representation. It cautioned that some matters will involve an appearance of impropriety no amount of screening can remove, in which case the entire firm is disqualified regardless. Both questions were answered in the affirmative.

Currency note

This opinion was issued in 1979, before New York replaced the Code of Professional Responsibility with the Rules of Professional Conduct in 2009 (former-government-lawyer conflicts and screening are now governed by Rule 1.11, and imputation by Rule 1.10). 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 a former assistant DA always barred from defending people his old office charged?

A: Under this opinion, no. The committee modified N.Y. State 313 to disqualify him only where he had substantial responsibility for the matter or access to relevant confidential or non-public information.

Q: What does "substantial responsibility" mean here?

A: Following ABA 342, the committee read it as heavy, personal involvement in the investigative or deliberative process, not nominal office or the mere fact an indictment issued during his tenure.

Q: Could the firm keep the case if the former assistant himself was disqualified?

A: Yes, in the circumstances presented, if he is screened from the matter and has not shared the information, though the committee noted some appearances of impropriety cannot be cured by screening and would disqualify the whole firm.

Background and rules framework

The opinion applied DR 9-101(B) (private employment in a matter for which the lawyer had substantial responsibility as a public employee), Canon 4 (DR 4-101(B); preserving a former client's confidences and secrets), DR 5-105(D) (imputed disqualification), and Canon 9 (appearance of impropriety), drawing heavily on ABA 342 (1975). It modifies N.Y. State 313 (1973). The current Model Rule analogues are Rule 1.11 (former and current government officers, including screening) and Rule 1.10 (imputation of conflicts).

Citations and references

Rules of Professional Conduct:

• MR 1.11 (special conflicts for former and current government officers and employees)
• MR 1.10 (imputation of conflicts)
• NY Canon 9; EC 4-5, EC 4-6; DR 4-101(B), DR 5-105(D), DR 9-101(B)

Cases:

• Cardinale v. Golinello, 43 N.Y.2d 288 (1977), imputed disqualification within a firm
• Emle Industries, Inc. v. Patentex, Inc., 478 F.2d 562 (2d Cir. 1973), disqualification to protect former-client confidences
• Silver Chrysler Plymouth Inc. v. Chrysler Motor Corp., 518 F.2d 751 (2d Cir. 1975), scope of disqualification

Other opinions cited:

• N.Y. State 313 (1973): the broad-brush rule, modified here
• ABA 342 (1975): "substantial responsibility" and harmonizing DR 5-105(D) with DR 9-101(B)

See also

• NY State Bar Op. 506: A public lawyer taking the same matter privately
• NY State Bar Op. 503: Confidences learned as a paralegal
• NY State Bar Op. 513: Part-time city attorney whose partner holds a political role

Source

• Landing page: https://nysba.org/opinion-502/