Is a special district attorney appointed for one case subject to the same restrictions on private criminal defense work as a regular part-time prosecutor?

Plain-English summary

The committee had recently set guidelines in N.Y. State 544 (1982) for regular "part-time" prosecutors who want to take criminal defense work, allowing it only when five conditions are met (the prosecutor's duties do not require him to prosecute crimes, the defense does not require appearing before an official of the locality he represents, his employing government unit is not involved, the offense is unlike those he prosecutes, and the investigating officers are not ones he works with as prosecutor). It was then asked whether those same limits apply to special district attorneys appointed under County Law section 701.

The committee concluded that a per se application of the part-time-prosecutor limits would be inappropriate for the office of special district attorney. It viewed the special district attorney as sui generis. Such an appointment is usually for a single case, made where the regular district attorney cannot serve, and is subject to careful court scrutiny; by legislative design the appointee is not part of the regularly constituted district attorney's office and his identification with the State is normally limited to the matter for which he was appointed. The committee reasoned that defense work by such an appointee, absent special circumstances, should not create an appearance of impropriety or conflicting loyalties, and that applying the stringent part-time standards would shrink the pool of qualified attorneys willing to serve.

The committee did not give the appointee unlimited freedom. It identified circumstances that may counsel against private criminal practice within the same district, including the reasons the district attorney was disqualified, the appointee's social, political, or economic relationship to the district attorney, the nature of the other criminal matters proposed, the district attorney's relationship to those matters, and any other circumstance that could reasonably lead the public to think the appointee's judgment would be influenced by factors outside the merits. Where the only connection is that private practice in the district will inevitably involve dealing with the district attorney's office, the committee said the mere possibility of public suspicion should not preclude appointing the best-qualified person. The question whether the part-time limits apply was answered in the negative.

Currency note

This opinion was issued in 1984, before New York replaced the Code of Professional Responsibility with the Rules of Professional Conduct in 2009 (conflict of interest now appears at Rule 1.7, the special conflict rules for current and former government lawyers at Rule 1.11, and the appearance-of-impropriety concern is addressed through those rules and Rule 8.4). 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: Does the five-part test for part-time prosecutors apply to a special district attorney?

A: No. The committee concluded that a special district attorney is sui generis and not a part-time prosecutor, so the per se test of N.Y. State 544 does not control.

Q: Can a special district attorney still be restricted from private criminal defense work?

A: Yes, but only based on the particular circumstances of the appointment, and any restriction reaches no further than matters pending in the district of appointment.

Q: What circumstances might limit the appointee's private practice?

A: The committee listed the reasons for the district attorney's disqualification, the appointee's relationship to the district attorney, the nature of the other criminal matters, the district attorney's connection to those matters, and anything else that could reasonably make the public doubt the appointee's independent judgment.

Background and rules framework

The opinion applied DR 5-105 (declining or continuing employment that may involve conflicting interests) and DR 9-101 (avoiding even the appearance of impropriety), read with EC 5-14, 9-2, and 9-6, to the office of special district attorney created by County Law section 701. The closest current Model Rule analogues are Rule 1.7 (concurrent conflicts), Rule 1.11 (special conflicts for government lawyers), and Rule 8.4 (misconduct).

Citations and references

Rules of Professional Conduct:

• MR 1.7 (conflict of interest: current clients)
• MR 1.11 (special conflicts of interest for former and current government officers)
• MR 8.4 (misconduct)
• NY DR 5-105; DR 9-101; EC 5-14; EC 9-2; EC 9-6

Statutes:

• County Law section 701 (appointment of a special district attorney)

Other opinions cited:

• N.Y. State 544 (1982): five-part test governing criminal defense work by part-time prosecutors (clarified here)
• N.Y. State 502 (1979): availability of qualified counsel for public service roles

See also

• NY State Bar Op. 568: District attorney participation in political activity
• NY State Bar Op. 573: District attorney attending political functions
• NY State Bar Op. 583: District attorney's business and rental ties with defense lawyers
• NY State Bar Op. 571: Board counsel also serving as a town justice

Source

• Landing page: https://nysba.org/opinion-564/