Can a lawyer work as a part-time assistant district attorney in one county while serving as a full-time police officer in another?

Plain-English summary

A lawyer asked whether he could be employed as a part-time district attorney while serving as a full-time police officer in another county. The committee answered no.

It emphasized the prosecutor's special, quasi-judicial role, citing Berger v. United States for the principle that a prosecutor's interest "is not that it shall win a case, but that justice shall be done," reflected in EC 7-13's precept that a prosecutor's duty is to seek justice, not merely to convict. Because the public's assessment of the prosecutor must be kept at the highest level, and police officers occupy unique positions that should not be detracted from by outside work, combining the roles creates a significant risk the public will assume the lawyer uses the power, prestige, and contacts of one office to gain unfair advantage in the other. The committee found that interest in public confidence and in minimizing the appearance of exploiting public office would be disserved by the dual employment (DR 9-101(C); EC 8-8, 9-1), citing N.Y. State 526 and out-of-state opinions reaching the same result.

The committee added a second, independent objection: the dual employment would impair the lawyer-prosecutor's professional judgment in violation of DR 5-101(A). The likelihood that the two roles will overlap is substantial and not cured by the counties being different, since the officer may help investigate or arrest a suspect later tried by the DA who employs him, or prosecute a matter involving his own department. These conflicts cannot be averted by prophylactic procedures like those in Virginia Op. 1213, because the police officer cannot assess in advance the identity of the defendant or witnesses in a given case. The committee answered the question in the negative, and noted it reached this conclusion as a matter of ethics regardless of whether a police officer could lawfully accept such outside employment.

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 prosecutor and conflict provisions cited here have since been recast in Rules 3.8 and 1.7. 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 Treat this page as historical context, not current guidance.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 be both a part-time prosecutor and a police officer?

A: No. The committee held that a lawyer may not ethically combine the duties of prosecutor and police officer, citing the harm to public confidence in law enforcement and the risk of conflicting interests.

Q: Does it matter that the two jobs are in different counties?

A: No. The committee held the substantial risk of overlap is not attenuated by different counties, because the officer may help arrest a suspect later prosecuted by his DA or prosecute matters involving his own department.

Q: Can screening or other procedures cure the problem?

A: No. The committee held that prophylactic procedures like those in Virginia Op. 1213 cannot avert the conflict, because the police officer cannot know in advance whether a defendant or witnesses have ties to his prosecutor county.

Background and rules framework

The opinion applied DR 5-101(A) (a lawyer's own interests affecting professional judgment) and DR 9-101(C) (not exploiting public position), informed by EC 5-2, EC 7-13 (the prosecutor's duty to seek justice), EC 8-8, and EC 9-1. The closest Model Rule analogues are Rule 3.8 (special responsibilities of a prosecutor) and Rule 1.7 (concurrent conflicts of interest).

Citations and references

Rules of Professional Conduct:

• MR 3.8 (special responsibilities of a prosecutor)
• MR 1.7 (concurrent conflicts of interest)
• NY DR 5-101(A); DR 9-101(C); EC 5-2; EC 7-13; EC 8-8

Cases:

• Berger v. United States, 295 U.S. 78 (1935): the prosecutor's duty that justice be done, not that a case be won
• Imbler v. Pachtman, 424 U.S. 409 (1976): the prosecutor's special, quasi-judicial role

Other opinions cited:

• N.Y. State 526 (1980): part-time assistant DA may not also serve as probation officer
• N.Y. State 615 (1991): a police officer may not defend criminal cases in any jurisdiction

See also

• NY State Bar Op. 615: Vicarious disqualification in a conflict of interest
• NY State Bar Op. 620: A district attorney's press release about seized evidence
• NY State Bar Op. 638: A newly elected DA prosecuting a former firm's client

Source

• Landing page: https://nysba.org/opinion-616/