Can a defense lawyer represent a client being prosecuted by an assistant DA the lawyer is dating, and is the lawyer's whole firm disqualified?
NY State Bar Ethics Opinion 660: A defense lawyer dating the prosecutor
Short answer: The opinion concluded that a defense lawyer in a frequent dating relationship with the assistant district attorney prosecuting a case may not represent the defendant, because the personal-interest conflict is not curable by client consent in a criminal matter; the lawyer's firm is not automatically disqualified, and another firm lawyer (or, with screening of the prosecutor, lawyers facing other assistants in the office) may handle such cases.
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 in a firm with a significant criminal defense practice was dating, frequently and seriously, an assistant district attorney in the same county. The committee answered three questions about the resulting conflict.
On the first, it held the dating relationship creates a personal interest within DR 5-101(A): each has an interest in the other's reputation, success, and welfare, which would ordinarily disqualify the lawyer from an adverse representation absent consent. Although DR 5-101(A) is expressly waivable, the committee held consent is not always effective; by analogy to DR 5-105, it must be obvious the lawyer can adequately represent the client. Where the matter involves the criminal justice system, consent is usually unavailing, because prosecutors wield broad discretion (EC 7-13) and even a scintilla of apparent partiality is intolerably suspect to public confidence. The committee concluded that, regardless of the lawyers' scruples, a couple who date frequently should not appear opposite one another in criminal cases, and so the associate could not take the case.
On the second, it addressed an anomaly in DR 5-105(D). A literal reading would automatically impute the associate's DR 5-101(A) disqualification to the entire firm, yet DR 9-101(D), which bars spouses from adverse representation, does not trigger automatic imputation. Because a dating relationship is less close than a spousal one, the committee held it would be illogical to impute firm-wide disqualification for dating when spouses are not so treated. So whether other firm lawyers are disqualified turns on the facts and circumstances; if another lawyer takes the case, the dating associate must be screened from it and receive no part of the fee.
On the third, the committee held that screening can cure the subordinate prosecutor's conflict: if the assistant district attorney is screened from all contact with cases defended by the lawyer she is dating, the lawyer may represent defendants prosecuted by other members of the office. The committee distinguished a dating relationship involving the elected District Attorney, noting (as a matter of law outside its jurisdiction) that under County Law 701 a disqualified District Attorney must be superseded rather than simply stepping aside.
Currency note
This opinion was issued in 1993, under New York's former Code of Professional Responsibility, which New York replaced with the Rules of Professional Conduct in 2009. 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 defense lawyer take a case prosecuted by an assistant DA the lawyer is dating?
A: Under this opinion, no. The committee held the frequent dating relationship is a personal-interest conflict under DR 5-101(A) that client consent cannot cure where the criminal justice system is involved.
Q: Is the lawyer's entire firm disqualified?
A: Not automatically. The committee declined to impute the disqualification firm-wide, reasoning that a dating relationship should be treated no more strictly than the spousal relationship in DR 9-101(D); the question turns on the facts, with the dating lawyer screened and excluded from the fee.
Q: Can the lawyer face other prosecutors in the same DA's office?
A: Yes, if the assistant DA the lawyer is dating is screened from all contact with the cases the lawyer defends.
Background and rules framework
The opinion interpreted New York's former Code: DR 5-101(A) (personal-interest conflicts and consent), DR 5-105(D) (imputation within a firm), DR 9-101(D) (the spousal-adversary bar), and EC 5-15 and EC 7-13. The closest Model Rule analogues are Rule 1.7 (concurrent conflicts, including personal-interest conflicts), Rule 1.10 (imputation), 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 1.7 (concurrent conflicts; personal-interest conflicts)
- MR 1.10 (imputation of conflicts)
- MR 3.8 (special responsibilities of a prosecutor)
- NY DR 5-101(A); DR 5-105(D); DR 9-101(D); EC 5-15; EC 7-13
Cases:
- Matter of Shumer v. Holtzman, 60 N.Y.2d 46 (1983): a disqualified District Attorney must be superseded
Other opinions cited:
- N.Y. State 621 (1991); N.Y. State 619 (1991): the "obviousness" test for effective consent
- N.Y. State 654 (1993): consent usually unavailing in criminal-justice conflicts
- N.Y. State 638 (1992); N.Y. State 632 (1992): fact-based test for imputed disqualification
- N.Y. State 502 (1978): screening to cure a subordinate public lawyer's conflict
See also
- NY State Bar Op. 670: A part-time City Court judge and assistant DA in one firm
- NY State Bar Op. 657: Part-time municipal lawyer criminal-defense bar
- NY State Bar Op. 725: Assistant DA appearing before a sibling judge
Source
- Landing page: https://nysba.org/opinion-660/