Ezel / Ethics Opinions / NYSBA
NYSBA 2011-03-25

Can a part-time government social services lawyer defend, in private practice, a client the agency is prosecuting for child neglect?

Short answer: No. A part-time Social Services lawyer who prosecutes neglect cases cannot also defend that client in an unrelated criminal matter; the role conflict is non-consentable and is imputed to the whole legal unit, so the full-time lawyer cannot prosecute either. It cannot be cured by screening, only by ending one of the two relationships.
Currency note: this opinion is from 2011
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 Not binding precedent.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.

NYSBA Ethics Opinion 859: A Part-Time Social Services Lawyer's Non-Consentable Conflict

Short answer: A part-time Department of Social Services lawyer who prosecutes child-neglect cases may not, in private practice, defend that same person in an unrelated criminal matter; the conflict is non-consentable, is imputed to the rest of the legal unit, and cannot be screened away.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York 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 county Department of Social Services legal unit has one full-time lawyer (the inquirer) and one part-time lawyer who also has a private practice. The legal unit assigned the part-time lawyer a child-neglect petition, and he then realized the respondent was already his client in an unrelated local criminal case. The committee addresses four questions: may the part-time lawyer represent the respondent, can consent cure it, can the full-time lawyer still prosecute, and would screening help.

Representing Social Services against the respondent while defending him elsewhere involves "differing interests" under Rule 1.0(f), so Rule 1.7(a)(1) bars it unless Rule 1.7(b) is satisfied. The committee draws on its long line of part-time-prosecutor opinions (N.Y. State 544, 657, 788, 800) holding that the prosecutor and defense-counsel roles are "inherently incompatible" and that the public might perceive favoritism toward those who hire a part-time prosecutor in other matters. It treats the Social Services lawyer prosecuting neglect cases as comparable to a district attorney: the agency seeks consequences as grave as a criminal case (loss of custody), and the part-time lawyer may have to impeach the same law-enforcement personnel Social Services relies on. So he cannot reasonably believe he can provide competent and diligent representation to each client under Rule 1.7(b)(1); the conflict is non-consentable, and neither the respondent's nor the agency's consent can cure it.

The conflict is imputed under Rule 1.10(a) because Rule 1.0(h) treats a government law office as a "firm," so the full-time lawyer also may not prosecute the neglect case while the part-time lawyer defends the respondent. The part-time lawyer's government conflict is likewise imputed to his private-practice partners and associates. Screening does not help: Rule 1.11(b)(1) screening applies only to former government lawyers, not to a current employee. The cure is structural: if the part-time lawyer leaves Social Services, or ethically withdraws from the unrelated criminal matter, the agency may proceed (and, because the matters are unrelated, no Rule 1.9 former-client consent is needed for the latter).

In practice

Under the New York rules as they stood at the time of the opinion, a part-time government lawyer who prosecutes on the agency's behalf cannot simultaneously represent the person being prosecuted in another matter; the opinion holds the conflict non-consentable and imputed across the government legal unit and across the lawyer's private firm. The only routes the opinion identifies are ending the government association or ethically withdrawing from the private matter, not consent and not screening. Because the criminal matter is unrelated to the neglect proceeding, the opinion holds the agency may continue prosecuting the now-former client without Rule 1.9 consent.

Common questions

Q: Can a part-time agency prosecutor defend the same person in an unrelated case?

A: No. The opinion concludes that the prosecutor and defense roles are inherently incompatible, so the part-time Social Services lawyer cannot defend a person the agency is prosecuting, and the conflict cannot be cured by the client's or the agency's consent.

Q: Can the full-time lawyer in the office prosecute instead?

A: No, not while the part-time lawyer defends the respondent. The opinion holds a government law office is a "firm," so under Rule 1.10(a) the part-time lawyer's conflict is imputed to the full-time lawyer.

Q: Would screening the part-time lawyer fix the conflict?

A: No. The opinion holds that Rule 1.11(b)(1) screening applies only to former government lawyers; it cannot prevent imputation of a current employee's conflict. The cure is for the part-time lawyer to leave the agency or withdraw from the private matter.

Background and rules framework

The opinion applies Rule 1.7 (concurrent conflicts and the Rule 1.7(b) consentability test), the "differing interests" definition in Rule 1.0(f), the "firm" definition in Rule 1.0(h) (including a government law office), Rule 1.10(a) (imputation), Rule 1.9 (former clients), and Rule 1.11(b) (screening only for former government lawyers). These correspond to Model Rules 1.7, 1.9, 1.10, and 1.11. The non-consentability turns on the inherent incompatibility of the prosecutorial and defense roles recognized in the committee's prior part-time-prosecutor opinions.

Citations and references

Rules of Professional Conduct:

  • New York Rule 1.7 (concurrent conflicts; consentability under 1.7(b)); Model Rule 1.7
  • New York Rule 1.10(a) (imputation within a firm); Model Rule 1.10
  • New York Rule 1.11(b) (screening for former government lawyers); Model Rule 1.11
  • New York Rules 1.0(f), 1.0(h) (definitions of "differing interests" and "firm")

Other opinions cited:

  • N.Y. State 544 (1982), 657 (1993), 788 (2005): part-time prosecutors barred from criminal defense; non-consentable
  • N.Y. State 800 (2006): part-time prosecutor and Family Court assignments, including neglect proceedings
  • N.Y. State 450 (1976): part-time town attorney's conflict imputed to private firm

See also

Source