Can a part-time county public defender sue the county that employs him on behalf of private clients?

Plain-English summary

The committee took up, by formal opinion because no clear New York authority existed, whether a part-time county public defender may represent private clients in civil litigation against the county that employs him. The objection it identified was the apparent conflict in accepting a retainer to sue one's own employer, raised under DR 5-105(A).

The committee concluded that the limited nature of the public office does not require disqualification from all litigation adverse to the county. It drew on its own prior opinions: N.Y. State 447 (1976) held that a lawyer for a county social services department was disqualified only as to matters relating to that department, not from all county matters; and N.Y. State 484 (1976) held that lawyer-members of a town zoning board could practice before other town agencies, refusing to apply a per se disqualification that would discourage lawyers from holding public office (EC 8-8). It noted the ABA had reached a similar result (ABA Inf. 855), and that the one published opinion squarely on point, Idaho Op. 485 (1974), allowed a county public defender to sue the county, reasoning that his clients are indigent defendants, not the county, so no conflict arises.

The committee agreed with the Idaho reasoning, with one qualification: before concluding there is no conflict, it must also be shown that the lawyer's public position gives him no access to confidential information relevant to his private retainers (DR 4-101(B); EC 9-6). The committee was satisfied that, under normal circumstances, a part-time county public defender has no such access, and answered the question in the affirmative.

Currency note

This opinion was issued in 1980, before New York replaced the Code of Professional Responsibility with the Rules of Professional Conduct in 2009 (the conflict and confidentiality standards discussed here now appear at Rules 1.7, 1.11 (former and current government officers), and 1.6). 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 Treat this page as historical context, not current guidance.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 public defender sue the county that employs him?

A: Yes, in civil matters for private clients. The committee held that his public clients are indigent defendants, not the county, so suing the county on unrelated private matters is not barred.

Q: What is the condition the committee attached?

A: That the lawyer's public position give him no access to confidential information relevant to the private retainers (DR 4-101(B)). The committee assumed that is normally the case for part-time county public defenders.

Q: Does holding public office automatically disqualify a lawyer from matters involving the government?

A: No. The committee rejected a per se disqualification, citing the Code's encouragement of lawyers holding public office (EC 8-8) and its earlier opinions limiting disqualification to matters tied to the lawyer's specific office.

Background and rules framework

The opinion applied DR 5-105(A) (declining employment involving differing interests) and DR 4-101(B) (preserving client confidences), informed by EC 5-1, EC 8-8, and EC 9-6, to a part-time public defender's private civil practice against the county. The closest current Model Rule analogues are Rule 1.7 (concurrent conflicts), Rule 1.11 (conflicts for current and former government officers), and Rule 1.6 (confidentiality).

Citations and references

Rules of Professional Conduct:

• MR 1.7 (concurrent conflicts)
• MR 1.11 (government officers and employees)
• MR 1.6 (confidentiality)
• NY EC 5-1, EC 8-8, EC 9-6, DR 4-101(B), DR 5-105(A)

Other opinions cited:

• N.Y. State 447 (1976): county social services lawyer disqualified only as to that department
• N.Y. State 484 (1976): zoning board members may practice before other town agencies
• ABA Inf. 855 (1965): claims against a city unrelated to the lawyer's office
• Idaho Op. 485 (1974): public defender may sue the county

See also

• NY State Bar Op. 526: Part-time assistant DA and probation officer
• NY State Bar Op. 520: Part-time judge in private criminal practice

Source

• Landing page: https://nysba.org/opinion-518/