If a lawyer is also a police officer and cannot do criminal defense work, can the other lawyers in the lawyer's firm take criminal cases?
NY State Bar Ethics Opinion 615: Whether a police-officer lawyer's firm can practice criminal law
Short answer: The opinion concluded that because a lawyer who is a police officer may not represent criminal defendants, the other lawyers in the firm with which he is associated are likewise prohibited from doing so, and DR 5-105(D) provides no screening exception that would let the firm avoid the disqualification.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York State Bar Association's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.
About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.
Plain-English summary
A lawyer was employed full-time as a town police officer and was also "of counsel" to a law firm. The question was whether the members of that firm could practice criminal law. The committee answered no.
Under DR 5-105(D), the firm's lawyers are barred from criminal defense work only if the police-officer lawyer would individually be barred by DR 5-101(A) through (C), DR 5-108, or DR 9-101(B). The committee found DR 5-101(A) was implicated. Because the lawyer continues to serve as a public employee, his representation of criminal defendants would be impermissible: a public officer should not represent private interests adverse to the public body he serves, every public employee owes a duty to act free of compromising loyalties, and a criminal defendant is entitled to undivided loyalty. The committee identified the dual dangers that a convicted defendant might believe his defense was compromised by the lawyer's police role, and that the public might lose faith if it believed the lawyer was hired to obtain leniency through that role, plus the incongruity of a police officer challenging in court the very laws he is sworn to enforce. So DR 5-101(A) barred the lawyer personally.
Because the lawyer-police officer is individually barred, the committee held his firm is barred too under DR 5-105(D), and noted that an "of counsel" lawyer is "associated" with the firm for this purpose. It distinguished the position of a former public officer under DR 9-101(B), where a firm may take the matter if the disqualified lawyer is effectively screened and apportioned no part of the fee; here, by contrast, the lawyer is still a serving public officer, and DR 5-105(D) provides no screening exception, so the whole firm is disqualified.
Currency note
This opinion was issued in 1991, under New York's former Code of Professional Responsibility, which New York replaced with the Rules of Professional Conduct in 2009. The conflict and imputation provisions cited here have since been recast in Rules 1.7 and 1.10. 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 lawyer who is a police officer do criminal defense work?
A: No. The committee held that DR 5-101(A) bars it, because the lawyer remains a serving public officer and a criminal defendant is entitled to undivided loyalty free of that conflict.
Q: Can the lawyer's firm take criminal cases if the police-officer lawyer does not?
A: No. Because the police-officer lawyer is individually disqualified, DR 5-105(D) imputes the disqualification to the entire firm, including a lawyer who is only "of counsel."
Q: Can screening the police-officer lawyer save the firm?
A: No. The committee held DR 5-105(D) provides no screening exception for this disqualification, unlike DR 9-101(B) for a former public officer, where screening and no shared fee can let the firm proceed.
Background and rules framework
The opinion applied DR 5-101(A) (a lawyer's own interests and public duties affecting judgment) and DR 5-105(D) (imputation of one lawyer's disqualification to the firm, with no screening exception here), contrasting DR 9-101(B) (former public officers, which does allow screening), under EC 8-8. The closest Model Rule analogues are Rule 1.7 (concurrent conflicts, including a lawyer's personal and public-duty interests) and Rule 1.10 (imputation of conflicts).
Citations and references
Rules of Professional Conduct:
- MR 1.7 (concurrent conflicts of interest)
- MR 1.10 (imputation of conflicts)
- NY DR 5-101(A); DR 5-105(D); DR 9-101(B); EC 8-8
Other opinions cited:
- N.Y. State 435 (1976): a public officer may not represent private interests adverse to the public body
- N.Y. State 397 (1975): a member of a state investigation agency may not practice criminal law
See also
- NY State Bar Op. 616: A part-time assistant DA who is also a police officer
- NY State Bar Op. 632: A part-time judge before the town's zoning and planning boards
- NY State Bar Op. 634: A former government lawyer representing other agencies
Source
- Landing page: https://nysba.org/opinion-615/