NYSBA 1994

Can a district attorney prosecute a case where the defendant is represented by the DA's spouse, sibling, or a former campaign adviser?

Short answer: The opinion concluded that a DA may not prosecute a case in which the defendant is represented by the DA's spouse or sibling (or their firm); whether a former unofficial adviser triggers disqualification depends on the facts, and a personally disqualified DA cannot delegate the case to the office.

Disclaimer: Advisory only. Not binding precedent.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked at the bottom of this page) is the authoritative source for any reliance.

NY State Bar Ethics Opinion 654: District attorney prosecuting against a relative or former adviser

Short answer: The opinion concluded that a district attorney may not prosecute a case in which the defendant is represented by the DA's spouse or sibling (or their law firm); whether a former unofficial transition-team adviser disqualifies the DA depends on a detailed factual examination; and a DA who is personally disqualified may not turn the prosecution over to the office.

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.

View original opinion

Plain-English summary

The committee addressed four questions about a district attorney facing defense counsel who is a close relative or former adviser. It framed the analysis around the DA's special role: under EC 7-13 the prosecutor's primary duty is not to convict but to see that justice is done, and both actual and perceived fairness matter especially in criminal matters.

On questions 1 and 2, the committee answered that a DA may not prosecute a case in which the defendant is represented by the DA's spouse or sibling or their law firm. It reasoned from DR 9-101(D), the bar on a lawyer opposing a close relative, noting that even before that rule the committee had held spouses could not represent adverse parties even in civil matters, so the standard cannot be lower in a criminal case. The interests of each lawyer's client become adverse to the lawyer's self-interest in the relative's professional success (DR 5-101(A)). The committee held that consent under DR 9-101(D) is not available here because there is no mechanism by which the People, whom the DA represents, can meaningfully consent (citing N.Y. State 629 (1992)).

On question 3, whether a lawyer who served as co-chairman of the DA's unofficial transition team (interviewing and recommending staff hires) is disqualifying, the committee said the answer depends on a detailed examination of all the relevant facts under the personal-interest analysis it outlined.

On question 4, the committee declined to answer as a matter of ethics, explaining that the law does not permit a district attorney to delegate prosecutorial responsibility where the DA is personally disqualified; in that situation the Attorney General must take charge on the Governor's order under Executive Law 63(2), or a special district attorney must be appointed under County Law 701.

Currency note

This opinion was issued in 1994, under New York's former Code of Professional Responsibility, which New York replaced with the Rules of Professional Conduct in 2009. The conflict provisions discussed here have since been revised. 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 DA prosecute a defendant represented by the DA's spouse?

A: No. The committee held the DA may not prosecute such a case, reasoning from DR 9-101(D) and the rule that spouses cannot represent adverse parties even in civil matters.

Q: Can the People consent to cure the conflict?

A: No. The committee found DR 9-101(D) consent unavailable because there is no mechanism for the People, whom the DA represents, to meaningfully consent.

Q: If the DA is personally disqualified, can the first assistant prosecute the case instead?

A: The committee did not treat that as an ethics question. It noted the law does not permit a personally disqualified DA to delegate; the Attorney General or a special district attorney must take over.

Background and rules framework

The opinion applied DR 9-101(D) (a lawyer's representation against a close relative), DR 5-101(A) (employment affected by the lawyer's own interests), DR 5-105, DR 8-101(A)(2), and EC 7-13 (the prosecutor's duty to see justice done) of New York's former Code. The closest Model Rule analogues are Rule 1.7 (concurrent and personal-interest conflicts) and Rule 1.11 (conflicts for government lawyers). 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 1.7 (personal-interest and concurrent conflicts)
MR 1.11 (special conflicts for government lawyers)
NY DR 9-101(D); DR 5-101(A); DR 5-105; DR 8-101(A)(2); EC 7-13

Statutes:

N.Y. Executive Law 63(2); N.Y. County Law 701 (appointment of the Attorney General or a special district attorney)

Cases:

Matter of Schumer v. Holtzman, 60 N.Y.2d 46 (1983): superseding a disqualified district attorney

Other opinions cited:

N.Y. State 629 (1992): when a governmental entity may consent to conflicting representation
N.Y. State 492 (1978): the district attorney's special role in the criminal justice system

Source

Landing page: https://nysba.org/opinion-654/