Ezel / Ethics Opinions / NYSBA
NYSBA 2006-11-03

Can a part-time prosecutor also serve as court-appointed counsel for indigent parties in a neighboring county's Family Court?

Short answer: Sometimes, case by case. The committee concludes there is no per se bar, but the part-time prosecutor may not take delinquency, PINS, or any matter involving law enforcement personnel the prosecutor works with, and must decline whenever a conflict or appearance of impropriety arises, resolving doubt against accepting.
Currency note: this opinion is from 2006
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
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 Not binding precedent.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 800: Part-time prosecutor as assigned Family Court counsel

Short answer: There is no per se bar, but a part-time prosecutor may not accept Family Court assignments in juvenile delinquency or PINS proceedings, or any matter involving law enforcement personnel the prosecutor works with, and must decline whenever a conflict or appearance of impropriety arises, resolving any doubt against accepting.

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

A part-time prosecutor sought appointment to a panel of attorneys assigned to represent indigent parties in the Family Court of a neighboring county. Family Court hears a wide range of matters, including child protective proceedings, custody, support, family offense, delinquency, PINS, and paternity, and the committee observes that nearly all of these proceedings tend to involve law enforcement agencies or other governmental entities. The committee was asked whether the part-time prosecutor may accept such assignments.

The committee declines to adopt a per se prohibition: whether the prosecutor may accept an assignment depends on the facts of each type of proceeding and each matter. The attorney must avoid conflicts under DR 5-101 and DR 5-105, ensuring that neither the attorney's own interests nor the simultaneous work as a prosecutor impairs independent judgment, and must avoid cases where a conflict is likely to surface mid-representation. The committee identifies categories that are always off-limits: matters involving officers or law enforcement personnel the prosecutor works or has worked with (N.Y. State 544); juvenile delinquency proceedings, where the defense function is indistinguishable from adult criminal defense (N.Y. State 171); and PINS proceedings, which the committee finds functionally indistinguishable from delinquency cases because the child is charged with conduct, law enforcement is involved, the standard is proof beyond a reasonable doubt, and the child's liberty is at stake.

The committee gives child protective (neglect and abuse) cases special mention: even where the charging officials are not those the prosecutor works with, the part-time prosecutor must be sensitive to the appearance of impropriety in appearing adverse to authorities conducting proceedings similar to a prosecution. Because assigned clients have no choice of counsel and would be prejudiced by mid-case substitution, the attorney must resolve any doubt against accepting an assignment (DR 2-110 governs withdrawal if a conflict later arises), and must ensure the dual roles do not create an appearance of impropriety under DR 9-101 and EC 9-1.

In practice

The opinion holds, under the former Code as it stood at the time, that a part-time prosecutor may accept some Family Court assignments but is categorically barred from juvenile delinquency proceedings, PINS proceedings, and any matter involving law enforcement personnel the prosecutor works with, and must decline any case presenting a conflict (DR 5-101, DR 5-105) or an appearance of impropriety (DR 9-101, EC 9-1). The committee directs that doubt be resolved against accepting because assigned clients cannot choose counsel and are prejudiced by mid-case substitution, and notes a panel administrator may find it impractical to include part-time prosecutors at all.

Common questions

Q: Can a part-time prosecutor serve as assigned counsel in Family Court at all?

A: Yes, in some matters. The committee declines to impose a per se bar and makes acceptance turn on a case-by-case conflicts and appearance-of-impropriety analysis.

Q: Which Family Court matters are always off-limits?

A: The committee identifies three: matters involving law enforcement personnel the prosecutor works with, juvenile delinquency proceedings, and PINS proceedings, the last two because they are functionally indistinguishable from criminal defense.

Q: How should the prosecutor handle a close call?

A: By declining. The committee directs that any doubt be resolved against accepting an assignment, because assigned clients have no choice of counsel and would be prejudiced if counsel had to withdraw under DR 2-110 mid-case.

Q: What about neglect and abuse cases where different officials are involved?

A: The committee says the prosecutor must be particularly sensitive to the appearance of impropriety in appearing adverse to authorities conducting proceedings similar to a prosecution, even when the charging officials are not ones the prosecutor works with.

Background and rules framework

The opinion interprets the former Code's conflict rules, DR 5-101 (the lawyer's own-interest conflict) and DR 5-105 (differing interests), both analogues of ABA Model Rule 1.7, together with DR 9-101 on avoiding the appearance of impropriety (the part-time prosecutor's dual public role implicates the concerns behind Model Rule 1.11) and DR 2-110 on withdrawal. EC 5-15 and EC 9-1 supply the directive to resolve doubts against the representation.

Citations and references

Rules of Professional Conduct:

  • MR 1.7 (concurrent conflicts of interest)
  • MR 1.11 (special conflicts for government officers and employees)
  • Former Code DR 5-101; DR 5-105; DR 9-101; DR 2-110; EC 5-15, EC 9-1

Other opinions cited:

  • N.Y. State 544 (1982): a part-time prosecutor is disqualified from private criminal defense statewide
  • N.Y. State 171 (1970): a part-time prosecutor may not represent defendants in juvenile delinquency proceedings
  • N.Y. State 427 (1976): private criminal defense by a part-time prosecutor is improper
  • N.Y. State 490 (1978): sensitivity required when seeking conflict consent from indigent clients

See also

Source