When a private lawyer is elected district attorney, can the new DA prosecute someone the lawyer's former firm represents, and is the whole office disqualified?
NY State Bar Ethics Opinion 638: A newly elected DA prosecuting a former firm's client
Short answer: The opinion concluded that a lawyer who moves from private practice to district attorney may prosecute a client of the lawyer's former firm in a matter where the lawyer did not participate personally and substantially and acquired no relevant confidences or secrets; whether the lawyer's disqualification, when it exists, extends to the entire office depends on the source of the disqualification and the statutory rule of necessity.
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
An associate at a firm with a large criminal practice was elected district attorney of a small upstate county and began severing ties with the firm. Before he left, he visited a murder scene at the outgoing DA's request. He later learned that a suspect in that murder had retained a partner at his old firm. He represented that he had no contact with the suspect, learned no confidences, and discussed the matter with the firm only to assess his own conflict. He asked whether he was disqualified from prosecuting that suspect, from prosecuting other defendants the firm represented, and whether any disqualification extended to his whole office.
The committee analyzed the 1990 amendments to New York's Code. Under DR 9-101(B)(3)(a), a lawyer moving from private practice to government may not prosecute a former-firm client if the lawyer "participated personally and substantially" in the matter while in practice; that standard requires significant personal involvement, not merely vicarious or supervisory participation. On the stated facts, the committee concluded the new DA could reasonably find he did not personally and substantially participate, so he was not disqualified from the murder prosecution; for other defendants, he must make the same case-by-case determination. The committee also read DR 5-108(A) (duties to a former client), derived from Model Rule 1.9, to reach the same result, because the New York drafters intended to disqualify a departed lawyer only where the lawyer personally represented the former client or acquired the client's confidences or secrets.
The committee added two further screens. Even a lawyer who passes those tests must withdraw under DR 2-110(B)(2) if prosecuting would require using a former client's confidences or secrets in violation of DR 5-108(A)(2) and DR 4-101(B), as where zealous prosecution (DR 7-101(A)(1)) would require disclosing protected information. And Canon 9's appearance-of-impropriety concern does not, by itself, require disqualification in the usual case, though the committee noted that assigning the matter to an untainted assistant with screening may be a prudent step.
On the third question, the committee explained that vicarious disqualification turns on the source of the primary disqualification. A DR 9-101(B)(3)(a) disqualification carries a "rule of necessity": the DA must bring a County Law Section 701 application, and only if a court determines no one in the office may prosecute does automatic imputation under DR 5-105(D) follow. A DR 5-108(A)(1) disqualification is treated the same way through the more specific Section 701 procedure. A withdrawal forced by DR 2-110(B)(2) does not disqualify the whole office unless a DR 5-105(D) rule is implicated or there is an appearance of impropriety or sharing of confidences within the office. The committee modified N.Y. State 492 (1978) and N.Y. State 502 (1979) to reflect this analysis.
Currency note
This opinion was issued in 1992, under New York's former Code of Professional Responsibility, which New York replaced with the Rules of Professional Conduct in 2009. The provisions on former clients, government lawyers, and imputation have since been recast in Rules 1.9, 1.10, and 1.11. 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 becomes DA prosecute a client of the firm he just left?
A: Yes, if the lawyer did not participate personally and substantially in the firm's representation and acquired no relevant confidences. The committee held the new DA could reasonably so conclude on the facts and was not disqualified from the murder prosecution.
Q: What if the prosecutor learned the former client's confidences anyway?
A: Then he must withdraw. The committee explained that even a lawyer who passes the participation and substantial-relationship tests must withdraw under DR 2-110(B)(2) if prosecuting would require using the former client's confidences or secrets (DR 5-108(A)(2), DR 4-101(B)).
Q: Is the whole DA's office disqualified when the DA is?
A: Not automatically. The committee said it depends on the source of the disqualification; a DR 9-101(B)(3)(a) bar requires a County Law Section 701 application, and only a court's determination that no one in the office may prosecute triggers automatic imputation under DR 5-105(D).
Background and rules framework
The opinion interpreted New York's former Code as amended in 1990: DR 9-101(B)(3)(a) (lawyer moving from private practice to government), DR 5-108(A) (former-client conflicts), DR 5-105(D) (vicarious disqualification), DR 2-110(B)(2) (mandatory withdrawal), DR 4-101(B), (C) (confidences and secrets), and DR 7-101(A) (zealous representation), with County Law Section 701 supplying the special-prosecutor mechanism. The closest Model Rule analogues are Rule 1.9 (duties to former clients), Rule 1.10 (imputation), Rule 1.11 (former government officers and employees), and Rule 3.8 (special responsibilities of a prosecutor). New York replaced the Code with the Rules of Professional Conduct in 2009; the provisions cited here are historical.
Citations and references
Rules of Professional Conduct:
- MR 1.9 (duties to former clients)
- MR 1.10 (imputation of conflicts)
- MR 1.11 (former and current government officers and employees)
- MR 3.8 (special responsibilities of a prosecutor)
- NY DR 9-101(B)(3)(a), DR 5-108(A), DR 5-105(D), DR 2-110(B)(2), DR 4-101(B), (C), DR 7-101(A)
Statutes:
- N.Y. County Law Section 701 (appointment of a special prosecutor)
- N.Y. Executive Law Section 63(2)
Cases:
- People v. Shinkle, 51 N.Y.2d 417 (1980): per se disqualification of the DA's staff
- Matter of Shumer v. Holtzman, 60 N.Y.2d 46 (1983): DA must seek judicial appointment of a special prosecutor
- Silver Chrysler Plymouth, Inc. v. Chrysler Motors Corp., 518 F.2d 751 (2d Cir. 1975): actual-knowledge approach to imputed conflicts
Other opinions cited:
- N.Y. State 492 (1978) and N.Y. State 502 (1979): modified
- N.Y. State 628 (1992): duty of loyalty ends with the representation; duty of confidentiality continues
See also
- NY State Bar Op. 654: District attorney where a relative represents the defendant
- NY State Bar Op. 657: Part-time municipal lawyer and criminal defense
- NY State Bar Op. 643: A conflicts panel for a legal services organization
Source
- Landing page: https://nysba.org/opinion-638/