Ezel / Ethics Opinions / NYSBA
NYSBA 2005-10-21

Can a part-time assistant district attorney keep representing a private client whom the DA's office is now prosecuting?

Short answer: No. The DA's office is treated as a law firm, so the office's conflict is imputed to the part-time prosecutor, who may not continue representing the husband in the civil estate-planning matter. The conflict cannot be cured by consent, and on these facts the lawyer should withdraw from the private representation.
Currency note: this opinion is from 2005
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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 788: A part-time prosecutor's office conflict reaches the lawyer's private clients

Short answer: A part-time assistant district attorney may not continue to represent a private client whom the district attorney's office is prosecuting, because the office is treated as a law firm and its conflict is imputed to the part-time prosecutor; the conflict cannot be cured by consent.

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.

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Plain-English summary

The inquirer is a private practitioner who also serves as a part-time assistant district attorney in a small office, sharing space and attending staff meetings where cases are discussed. In his private practice he had begun representing a husband and wife in revising their wills. After the initial interview, he learned his own district attorney's office had begun prosecuting the husband. He asked whether he could continue representing the husband and, if not, whether consent could cure the conflict.

The committee concludes he may not continue and that consent cannot cure the conflict. DR 5-105(B) bars concurrent representation involving differing interests absent consent, and the committee has long held that part-time prosecutors are limited in their private work (for example, they may not defend criminal cases in New York courts). DR 5-105(D) imputes DR 5-105 conflicts to all lawyers "associated in a law firm," and the committee has repeatedly treated a district attorney's office as a law firm. Although a part-time prosecutor's affiliation may be less extensive than a typical partner's, the inquirer has full access to office information, attends staff meetings, and does the office's work; his affiliation is at least as close as that of most of-counsel lawyers, whose conflicts are imputed, and the heightened need to avoid the appearance of impropriety in government reinforces imputation.

On waiver, the committee relies on N.Y. State 657: because the roles of prosecutor and private advocate carry special public responsibilities, the risk that the public would perceive favoritism precludes waiver. As to which representation must end, the Code does not dictate it, but on these facts (the office's withdrawal would force appointment of a special prosecutor, and the estate-planning matter was at an early stage) the committee concludes the inquirer should withdraw from representing the husband. The committee adds a further caution under DR 5-108(A)(1): if the private representation and the prosecution are "substantially related" (for example, if the prosecution alleges secreting assets and the estate planning touched the same assets), the conflict could be imputed to the entire office and require a special prosecutor; a representation about an unrelated matter such as a traffic offense would not.

In practice

Under the New York Code as it stood at the time, the opinion holds that a part-time assistant district attorney cannot keep a private client the office is prosecuting, because the office is a law firm under DR 5-105(D) and its conflict imputes to him, and the conflict is non-waivable given the public's interest in avoiding the appearance of prosecutorial favoritism. The committee identifies the close, information-sharing affiliation (full access to files, attending staff meetings) as the basis for treating the part-time prosecutor like an associated lawyer. It notes that ordinarily the prosecutor withdraws from the private matter, but that where the matters are substantially related the disqualification can reach the whole office and require a special prosecutor.

Common questions

Q: Is a district attorney's office treated as a law firm for conflicts?

A: Yes. The committee reaffirms its repeated holdings that a DA's office is the functional equivalent of a law firm, so DR 5-105(D) imputes office conflicts to the lawyers in it.

Q: Does the imputation reach a part-time assistant DA?

A: Yes. The committee finds the part-time prosecutor's affiliation (full file access, staff meetings, doing the office's work) is at least as close as an of-counsel relationship, which triggers imputation, and that the appearance-of-impropriety concern reinforces it.

Q: Can the client and the DA's office consent to waive the conflict?

A: No. The committee concludes the conflict is not waivable, because the public's interest in avoiding any perception of prosecutorial favoritism precludes consent.

Q: Could the conflict disqualify the entire DA's office?

A: It could, under DR 5-108(A)(1), if the private representation and the prosecution are substantially related, in which case a special prosecutor may be required. If the matters are unrelated, withdrawal from the private matter suffices.

Background and rules framework

The opinion applies New York's former Code of Professional Responsibility. DR 5-105(B) governs concurrent representation of differing interests and DR 5-105(D) imputes those conflicts firm-wide (facets of Model Rules 1.7 and 1.10). DR 5-108(A)(1) governs former-client conflicts and the substantial-relationship test (analogous to Model Rule 1.9). DR 2-110(B)(2) requires withdrawal when continued employment would violate a Disciplinary Rule (analogous to Model Rule 1.16). The DA's-office-as-firm and part-time-prosecutor lines draw on N.Y. State 657, 670, and 672.

Citations and references

Rules of Professional Conduct:

  • MR 1.7 (concurrent conflicts); NY DR 5-105(B)
  • MR 1.10 (imputation within a firm); NY DR 5-105(D)
  • MR 1.9 (former clients; substantial relationship); NY DR 5-108(A)(1)
  • MR 1.16 (mandatory withdrawal); NY DR 2-110(B)(2)

Statutes:

  • N.Y. County Law § 701(1)(a) (appointment of a special district attorney)

Cases:

  • Matter of Schumer v. Holtzman, 60 N.Y.2d 46 (1983), a DA should be disqualified only in limited circumstances
  • Nemet v. Nemet, 112 A.D.2d 359 (1985), of-counsel relationship leads to imputed disqualification

Other opinions cited:

  • N.Y. State 657 (1993): a part-time prosecutor's defense-side conflict is non-waivable
  • N.Y. State 672 (1995): the DA's office is the functional equivalent of a law firm
  • N.Y. State 723 (1999): substantial-relationship test

See also

Source