Can the same lawyer serve at once as a part-time assistant district attorney and a probation officer in the same county?

Plain-English summary

The committee considered whether a lawyer could be employed at the same time as a part-time assistant district attorney and a probation officer within the same county. It began from the principle that public confidence in the administration of justice requires certain public offices to remain independent of one another, especially where the offices are meant to function as adversaries or to represent incompatible interests, and that independence must be as apparent to the public as it is in fact (Canons 5, 8, and 9; EC 8-8, EC 9-3, DR 5-105(A)).

The committee then examined whether the prosecutor's function is so incompatible with the probation officer's that one lawyer may not serve both. A prosecutor, though enjoined to seek justice (EC 7-13), is ultimately antagonistic to the accused. A probation officer, by contrast, is encouraged by state law to develop a close relationship with the probationer and, through friendly advice and admonition, to improve the probationer's conduct and attitude (Executive Law sec. 257(4)). The committee noted that Division of Probation regulations keep the probation officer's records confidential as against prosecutorial authorities, and that the probation office often applies for early discharge, requiring the officer to testify on the probationer's behalf and so to undo or mitigate the prosecution's work.

The committee concluded the two functions are fundamentally incompatible, so it would be inappropriate for one lawyer to serve the same jurisdiction in both capacities. It emphasized that the fact a probation officer may not have personally prosecuted the individuals assigned to him is not determinative, because the disqualification attaches to the office. The question was answered in the negative.

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 (concurrent conflicts now appear at Rule 1.7 and the special rules for government lawyers at Rule 1.11). 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 Treat this page as historical context, not current guidance.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 one lawyer be both a part-time assistant DA and a probation officer in the same county?

A: No. The committee held the prosecutor's role is fundamentally incompatible with the probation officer's role, so a lawyer may not hold both positions in the same jurisdiction at the same time.

Q: Why are the two roles incompatible?

A: A prosecutor is ultimately antagonistic to the accused, while a probation officer is encouraged to build a close, supportive relationship with the probationer and even to seek early discharge; the committee found the functions diverge fundamentally.

Q: Does it help that the lawyer never prosecuted his own probationers?

A: No. The committee held the disqualification attaches to the office, so the absence of personal involvement in a particular case is not determinative.

Background and rules framework

The opinion applied DR 5-105(A) (declining employment that would create a conflict), under Canons 5, 8, and 9 and EC 8-8 and EC 9-3, to a lawyer holding two county positions. The closest current Model Rule analogues are Rule 1.7 (concurrent conflicts of interest) and Rule 1.11 (special conflicts for current and former government officers and employees).

Citations and references

Rules of Professional Conduct:

• MR 1.7 (concurrent conflicts of interest)
• MR 1.11 (government lawyers)
• NY Canon 5, Canon 8, Canon 9, EC 8-8, EC 9-3, DR 5-105(A)

Statutes:

• N.Y. Executive Law sec. 257(4) (probation officer's role)

Other opinions cited:

• N.Y. State 432 (1976), 389 (1975), 378 (1975): incompatible public offices
• ABA 118 (1934): county attorney barred from seeking parole in another county

See also

• NY State Bar Op. 544: Part-time government attorney and criminal defense
• NY State Bar Op. 537: Prosecutor's political activities
• NY State Bar Op. 533: Public defender's office conflict on an ineffective-assistance appeal

Source

• Landing page: https://nysba.org/opinion-526/