Can a New York assistant district attorney rent office space from, or go into business with the spouse of, a defense lawyer who practices in the same county?

Plain-English summary

An assistant district attorney planned to start a college-admissions consulting business unrelated to law. He proposed to rent office space in a building owned by an assistant public defender who practiced law in the same county, and to employ the wife of a criminal defense attorney who principally practiced in that county, possibly letting her invest in the business, own shares, or serve as an officer or director. The committee was asked whether each of those arrangements was permissible.

The committee first noted that a lawyer may engage in a non-law business if no ethical or legal rules are violated (N.Y. State 307), and flagged that DR 2-104(A) and Judiciary Law section 479 bar accepting employment that results from unsolicited advice to obtain counsel, though it did not rule on that question of law. On the rental question, it assumed the consulting office would be separate from where the assistant public defender practiced law, and expressly did not reach whether a lawyer may share office space used for a non-law business with a potential opposing advocate.

The committee analyzed all three questions under DR 5-101(A), which (absent client consent after full disclosure) bars a lawyer from accepting employment where professional judgment on behalf of a client will be or reasonably may be affected by the lawyer's own financial, business, property, or personal interests. It found no per se prohibition, but said the answer turns on the facts: especially favorable rental terms, or a rental whose continuation is of special importance to one side, could influence judgment in matters where the prosecutor and the landlord-defender have adversarial interests; likewise, the size of any investment by the defense lawyer's spouse and the degree of influence it carried would determine whether the relationship was barred. Two qualifications were central. Because the assistant district attorney represents the People, consent cannot be obtained to waive DR 5-101(A) (N.Y. State 453). And nothing inherent in the spousal relationship, by itself, disqualifies the arrangement. Subject to those qualifications, the questions were answered in the affirmative. A footnote reaffirmed that lawyers sharing office space may not represent clients with opposing interests, and stressed that the presence of a public official heightens the concern for avoiding even the appearance of impropriety under Canon 9.

Currency note

This opinion was issued in 1987, before New York replaced the Code of Professional Responsibility with the Rules of Professional Conduct in 2009 (personal-interest conflicts now appear at Rule 1.7(a)(2) and business dealings at Rule 1.8). 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: Could the assistant DA rent office space from an assistant public defender in the same county?

A: Yes, with no per se bar, for a non-law business in separate space, unless the rental terms or circumstances would or reasonably could affect the prosecutor's professional judgment under DR 5-101(A).

Q: Could the assistant DA employ or take investment from a defense attorney's spouse?

A: Yes, subject to the same DR 5-101(A) analysis. The committee held the mere employment or investment is not per se disqualifying; the size of the investment and the degree of influence determine whether it is barred, and nothing in the spousal relationship alone disqualifies it.

Q: Could the prosecutor consent his way past the conflict?

A: No. Because the assistant district attorney represents the People, the committee held consent cannot be obtained to waive DR 5-101(A); the arrangement is permissible only if it would not affect professional judgment in the first place.

Background and rules framework

The opinion turned on DR 5-101(A), which bars representation where the lawyer's own financial, business, property, or personal interests would reasonably affect professional judgment, read together with EC 5-2 and the Canon 9 concern for the appearance of impropriety. It also referenced DR 2-104(A) on employment resulting from unsolicited advice. The closest current Model Rule analogues are Rule 1.7 (conflicts, including personal-interest conflicts) and Rule 1.8 (business transactions).

Citations and references

Rules of Professional Conduct:

• MR 1.7 (conflicts of interest, including personal-interest conflicts)
• MR 1.8 (business transactions and prohibited dealings)
• NY DR 5-101(A); DR 2-104(A); EC 5-2; Canon 9

Other opinions cited:

• N.Y. State 453 (1976): a government lawyer representing the People cannot obtain consent to waive DR 5-101(A)
• N.Y. State 437 (1976): office-sharing lawyers may not represent opposing interests where one shares space with an assistant district attorney
• N.Y. State 307 (1973): a lawyer may engage in a non-law business if no rules are violated

See also

• NY State Bar Op. 579: Representing opposing counsel in unrelated litigation
• NY State Bar Op. 587: A part-time public defender taking private clients
• NY State Bar Op. 616: A part-time assistant DA who is also a police officer

Source

• Landing page: https://nysba.org/opinion-583/