Can a county public defender review the billing vouchers of assigned counsel who took over a case because the public defender had a conflict of interest?
NY State Bar Ethics Opinion 811: Public defender reviewing conflict counsel's bills
Short answer: Where a public defender's office is barred by a conflict from representing a party, it ordinarily may not review the billing vouchers of the assigned conflict counsel who took the case, because reviewing those bills would re-involve the office in the very matter from which it is disqualified.
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
New York counties must provide counsel to indigent criminal and family-court litigants, and many do so through a public defender backed by private Article 18-B counsel for cases the public defender cannot take because of a conflict (for example, co-defendants). Some counties, lacking a separate program to review assigned-counsel bills, require the public defender to review the billing vouchers of the 18-B lawyer who took over a conflict case. The committee was asked whether a public defender employed by the county may perform that review.
The committee concludes the office may not. If the public defender is barred by a conflict from representing a party, it is equally barred from reviewing the bills of the assigned counsel who took the matter. Reviewing those billing materials would likely expose the office to the assigned counsel's trial-preparation work product and would call on the office to advise the county whether the expenditures were excessive. That pits the office's duty of loyalty (EC 5-1) and zealous advocacy (DR 7-101(A)(1)) to its conflicting client against the county's expectation of impartial advice on the 18-B lawyer's bills. The committee frames this as a conflict either between two clients of the office (the county and the conflicting client) under DR 5-105, or between the client's interests and the office's own interest in carrying out the review under DR 5-101; either way the result is the same, and under DR 5-105(D) the disqualification is imputed to every member of the office's staff.
The committee adds that consent is unlikely to cure the conflict here. It has noted the difficulty of obtaining informed consent from indigent assigned clients, and a single office rarely may represent multiple criminal defendants. If the conflict that required appointment of 18-B counsel was non-consentable, the same conflict would non-consentably bar the office from reviewing that counsel's bills.
In practice
The opinion holds, under the former Code as it stood at the time, that a public defender's office disqualified by a conflict from a representation may not review the billing vouchers of the assigned 18-B conflict counsel to determine or recommend whether they should be paid. The committee grounds the bar in the office's duties of loyalty (EC 5-1) and zealous advocacy (DR 7-101(A)(1)) and treats the situation as a conflict under either DR 5-105 (county versus conflicting client) or DR 5-101 (client interest versus the office's own review obligation), imputed to all staff under DR 5-105(D). It limits its conclusion to conflicting interests of criminal defendants and expresses no view on bill review in other contexts where the parties' interests differ only slightly.
Common questions
Q: Can a conflicted public defender's office still review the assigned counsel's bills?
A: No, ordinarily. The committee concludes that an office barred by a conflict from representing a party may not review the billing vouchers of the assigned conflict counsel to decide or recommend whether they should be paid.
Q: Why does reviewing bills create a conflict?
A: The committee explains that bill review would expose the office to the assigned counsel's trial-preparation work product and require the office to advise the county whether the expenditures were excessive, conflicting with the office's duties of loyalty and zealous advocacy to its client in the related matter.
Q: Can client consent cure the conflict?
A: Unlikely, per the committee. It notes the difficulty of obtaining informed consent from indigent assigned clients, and reasons that if the underlying conflict was non-consentable (as it often is for co-defendants), the bill-review conflict would be non-consentable too.
Q: Does the bar apply to the whole office or just the individual lawyer?
A: The whole office. The committee notes DR 5-105(D) imputes the conflict to all lawyers in the office, so no member of the public defender's staff may engage in the review.
Background and rules framework
The opinion interprets the former Code's concurrent-conflict provisions, DR 5-105(C) and (D) (analogues of ABA Model Rules 1.7 and 1.10) and DR 5-101 (the lawyer's own-interest conflict, also within Model Rule 1.7), together with the duty of zealous advocacy in DR 7-101(A)(1) and the loyalty principle in EC 5-1. It applies the imputation rule of DR 5-105(D) to the public defender's office as a unit.
Citations and references
Rules of Professional Conduct:
- MR 1.7 (concurrent conflicts of interest)
- MR 1.10 (imputation of conflicts within a firm)
- Former Code DR 5-101; DR 5-105(C), (D); DR 7-101(A)(1); EC 5-1, EC 5-15
Statutes:
- New York County Law section 722 (county plans for representing the indigent); County Law Article 18-A (public defender) and Article 18-B (assigned counsel)
Cases:
- Wheat v. United States, 486 U.S. 153 (1988), special dangers of multiple representation of criminal defendants
Other opinions cited:
- N.Y. State 800 (2006): difficulty of obtaining conflict consent from assigned clients
- N.Y. State 788 (2005): imputation of a small district attorney's office's conflicts to a part-time prosecutor
See also
- NY State Bar Op. 810: Representation of private clients by a government contract attorney
- NY State Bar Op. 1029: Conflicts for government lawyers with prior private clients
- NY State Bar Op. 1065: Part-time prosecutor's firm suing a separate village
Source
- Landing page: https://nysba.org/ethics-opinion-811/