When may a part-time public defender in New York accept a criminal defendant as a private paying client?

Plain-English summary

The committee modified its earlier opinions on a recurring problem: a part-time public defender contacted to represent a criminal suspect privately. Its prior opinions (N.Y. State 165, 173, and 260) had drawn a firm line: a part-time public defender could do private criminal work, but could not accept a private retainer from anyone who had first contacted the office for assigned representation, on the theory that the office must not be perceived as a feeder for a private practice (Canon 9; EC 9-2, the appearance of impropriety).

The committee held that the first two situations posed fell outside that bar. Where the defendant sought out the individual attorney based on reputation or a third-party recommendation, the contact stemmed from independent factors, not from a request to the office for appointed counsel. The committee reasoned that also exploring whether public assistance is available, at either the client's or the attorney's suggestion, should not disqualify the lawyer or force the client to look elsewhere; the contrary rule would deprive defendants of their choice of counsel or discourage them from applying for appointed representation.

On the third situation, the committee addressed a defendant found ineligible for appointed counsel who, after reasonable inquiry, cannot find qualified private counsel willing to take the case on affordable terms (its example was a client able to make weekly payments from a worker's compensation award). The committee held that, as a last resort, the part-time public defender may take the case privately, because the concerns underlying the earlier opinions no longer apply with the same force: rather than securing an advantage from the office, the lawyer is providing representation to a person of modest means. All three questions were answered in the affirmative.

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. The "appearance of impropriety" standard in Canon 9 that drove this opinion was not carried forward into the Rules of Professional Conduct as a freestanding test. 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 Treat this page as historical context, not current guidance.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 take a private client who first checked on appointed counsel?

A: Yes, if the client sought the lawyer out privately. The committee held that where the defendant contacted the individual attorney based on reputation or a recommendation, also exploring eligibility for appointed counsel does not disqualify the lawyer from private representation.

Q: Can a part-time public defender privately represent someone found ineligible for appointed counsel?

A: Yes, as a last resort. The committee held that where, after diligent inquiry, no other qualified counsel will take the case on terms the client can afford, the part-time public defender may take it privately, because the lawyer is then serving a person of modest means rather than feeding their practice from the office.

Q: What earlier rule did this opinion change?

A: The committee modified N.Y. State 165, 173, and 260, which had flatly barred a part-time public defender from privately representing anyone who first contacted the office for assigned counsel.

Background and rules framework

The opinion rested on Canon 9 and EC 9-2 of the Code of Professional Responsibility, which counseled lawyers to avoid even the appearance of professional impropriety, applied here to the concern that the public defender's office not be used to build a private practice. The closest current Model Rule themes are Rule 1.7 (personal-interest conflicts) and Rule 6.2 (a lawyer's responsibilities regarding appointed and indigent representation), though the appearance-of-impropriety standard the opinion applied has no direct Model Rule counterpart.

Citations and references

Rules of Professional Conduct:

• MR 1.7 (conflicts of interest, including a lawyer's personal interests)
• MR 6.2 (declining or accepting appointments; representation of indigent persons)
• NY Canon 9; EC 9-2 (appearance of professional impropriety)

Other opinions cited:

• N.Y. State 165 (1970); N.Y. State 173 (1970); N.Y. State 260 (1972): the prior, stricter rule, here modified
• South Carolina Op. 1-79; Oregon Op. 220 (1972); Illinois Op. 406 (1973): comparable out-of-state guidance on part-time public defenders taking private work

See also

• NY State Bar Op. 605: Public defender vs. a former client as a prosecution witness
• NY State Bar Op. 592: Public defender disqualified by one client's confession
• NY State Bar Op. 657: Part-time municipal lawyer and the criminal defense bar

Source

• Landing page: https://nysba.org/opinion-587/