Can a part-time local government attorney who prosecutes ordinance violations also defend criminal cases privately?

Plain-English summary

The committee revisited its longstanding rule that an attorney with prosecutorial responsibilities as an incident of part-time local government employment is disqualified from privately practicing criminal law in any New York court (N.Y. State 184 (1971) and the line following it). The theory was that, because a prosecutor represents the people of the state, switching between prosecuting and defending would create at least the appearance of a conflict of interest under DR 5-105, DR 9-101, and EC 5-14, 9-2, and 9-6.

The committee recognized the tension between that rule and the reality of local practice. Although CPL provisions require even local prosecutions to be brought in the name of the people of the state, and Village Law section 20-2006 lets village attorneys prosecute only if designated assistant district attorneys, the committee found that many district attorneys, as a matter of custom that has the force of law, routinely decline to appear in local-ordinance matters. Where the district attorney asserts no interest, the committee saw no real or apparent conflict, only one in name. Because custom varies across the state, it concluded that a fixed line was needed rather than reliance on each district attorney's habits.

The committee set that line at the laws of the state itself. A local attorney whose statutory or customary responsibilities include prosecuting any offense designated as such by the Penal Law or another state statute (for example, Vehicle and Traffic Law offenses) may not privately defend criminal cases, even if the district attorney customarily declines to prosecute that offense. The committee stated a five-part test: a part-time local attorney may take a criminal defense only if (1) his prosecutorial duties never require him to prosecute crimes or offenses designated as such by state law, (2) the defense does not require an appearance before a judicial or other official of the locality he represents, (3) the local government unit or a violation or construction of its ordinances is not involved, (4) the offense charged is unlike any he prosecutes, and (5) the investigating and law enforcement personnel involved are not those he works with as prosecutor. The question was answered in the affirmative to that extent. The opinion modified N.Y. State 184, 234, 257, 315, 367, and 427, and was later clarified by N.Y. State 564 (1984).

Currency note

This opinion was issued in 1982, before New York replaced the Code of Professional Responsibility with the Rules of Professional Conduct in 2009 (conflicts of interest now appear at Rule 1.7 and the special conflict rules for government lawyers at Rule 1.11). Subsequent rule amendments or later opinions may have changed the analysis; this opinion was itself clarified by N.Y. State 564 (1984). 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 town or village attorney defend criminal cases on the side?

A: Only within strict limits. The committee held he may if he prosecutes no offenses designated as such by the Penal Law or other state statute and the defense stays clear of the locality, its officials, its ordinances, and the same investigators.

Q: Does it matter that the local district attorney usually declines to prosecute ordinance cases?

A: The committee declined to rest the rule on local custom because it varies across the state. The dividing line is whether the attorney's duties reach offenses designated by state law, not the district attorney's habits.

Q: Can the attorney defend a matter requiring an appearance before a judge of his own locality?

A: No. The opinion held the local prosecutor should not appear before a judicial or other official of the locality he publicly represents, or in a matter involving the locality or its ordinances.

Background and rules framework

The opinion applied DR 5-105 (declining or withdrawing from conflicting employment), DR 9-101 (avoiding even the appearance of impropriety), and EC 5-14, 9-2, and 9-6 to the dual role of a part-time local prosecutor who also defends criminal cases. It read those provisions against ABA 34 (1931) and ABA Inf. 1045 (1968). The closest current Model Rule analogues are Rule 1.7 (concurrent conflicts) 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 (special conflicts for government officers and employees)
• NY DR 5-105, DR 9-101, EC 5-14, EC 9-2, EC 9-6

Statutes:

• N.Y. CPL sections 1.20(1), 10.10(3), 100.05 (accusatory instruments brought in the name of the people of the state)
• N.Y. Village Law section 20-2006 (village attorney prosecuting only if designated assistant district attorney)
• N.Y. County Law section 700(1) (district attorney's duty to prosecute)

Other opinions cited:

• ABA 34 (1931); ABA Inf. 1045 (1968): part-time city attorneys prosecuting and defending
• N.Y. State 184 (1971): prior rule disqualifying part-time local prosecutors from criminal defense (modified)
• N.Y. State 564 (1984): later clarified this opinion

See also

• NY State Bar Op. 564: Part-time prosecutor conflict and special DA
• NY State Bar Op. 537: Prosecuting attorneys and political activities
• NY State Bar Op. 552: Prosecutor's political endorsement of a successor

Source

• Landing page: https://nysba.org/opinion-544/