Can a part-time assistant public defender take an assigned-counsel case that another lawyer in the same public defender office is conflicted out of?

Plain-English summary

The inquirer is a solo lawyer who is also a part-time assistant public defender assigned to Family Court in a county defender office. He wants to join the county's assigned-counsel list so he can take, in his private practice, criminal cases that another assistant public defender (full or part time) cannot handle because of a conflict. The question is whether that other lawyer's conflict is imputed to him.

The committee answers in two steps. First, is the conflict imputed? Yes. Rule 1.10(a) imputes a Rule 1.7, 1.8, or 1.9 conflict to all lawyers "associated in a firm," and Rule 1.0(h) and 1.0(p) define a public defender office (a qualified legal assistance organization under Rule 7.2(b)) as a "firm." Part-time lawyers are "associated" in the firm just as full-timers are, and imputation runs across practice areas, so the inquirer's Family Court assignment does not insulate him. This follows N.Y. State 173 (1970), 592 (1988), and 462 (1977).

Second, can the imputed conflict be waived? Sometimes. Rule 1.10(d) allows waiver on the conditions in Rule 1.7(b): the lawyer reasonably believes he can provide competent and diligent representation to each affected client, the representation is not prohibited by law, it does not pit one client against another in the same proceeding, and each affected client gives informed written consent. The committee cannot judge the "reasonable belief" element on these facts (no case has been assigned yet), but it explains who must consent depending on the source of the conflict: a current-client conflict (Rule 1.7(a)(1)) requires consent from both the inquirer's assigned client and the conflicted lawyer's current client; a personal-interest conflict (Rule 1.7(a)(2)) requires consent only from the inquirer's own client; and a former-client conflict (Rule 1.9) requires consent from the conflicting former client.

In practice

Under the New York rules as they stood at the time of the opinion, lawyers in a public defender office are treated as one firm for conflict purposes, so a disqualifying Rule 1.7 or 1.9 conflict held by one assistant public defender disqualifies the others, regardless of full- or part-time status or practice area. The opinion holds that such an imputed conflict may be cured only through Rule 1.10(d) and Rule 1.7(b): the lawyer's reasonable belief in competent, diligent representation plus informed written consent from each affected client. The committee does not decide whether any particular conflict here is in fact consentable, because no case had yet been assigned.

Common questions

Q: Is a public defender office a "firm" for conflict-imputation purposes?

A: Yes. The opinion concludes that a public defender office is a qualified legal assistance organization under Rule 7.2(b), making it a "firm" under Rule 1.0(h), so Rule 1.10(a) imputes one lawyer's conflict to all of them.

Q: Does it matter that the part-time defender works only in Family Court, not the criminal courts?

A: No. The opinion holds that imputation under Rule 1.10(a) reaches all lawyers in the firm across all practice areas, so a different practice assignment does not avoid the imputed conflict.

Q: Can the conflict be waived, and whose consent is needed?

A: It can be waived under Rule 1.10(d) if Rule 1.7(b)'s conditions are met. The opinion explains that who must consent depends on the conflict's source: both affected current clients for a Rule 1.7(a)(1) conflict, only the inquirer's own client for a Rule 1.7(a)(2) personal-interest conflict, and the former client for a Rule 1.9 conflict, each confirmed in writing.

Background and rules framework

The opinion applies Rule 1.10(a) (imputation of conflicts within a firm) together with the "firm" definition in Rule 1.0(h) and the "qualified legal assistance organization" definition in Rule 1.0(p), which incorporates the public-defender category in Rule 7.2(b). It identifies the source conflicts under Rules 1.7(a)(1), 1.7(a)(2), and 1.9, and routes any cure through Rule 1.10(d), which conditions waiver on the Rule 1.7(b) factors. These mirror Model Rules 1.7, 1.9, and 1.10.

Citations and references

Rules of Professional Conduct:

• New York Rule 1.10(a), (d) (imputation and waiver); Model Rule 1.10
• New York Rule 1.7 (concurrent conflicts and consentability); Model Rule 1.7
• New York Rule 1.9 (duties to former clients); Model Rule 1.9
• New York Rules 1.0(h), 1.0(p), 7.2(b) (definition of "firm" and qualified legal assistance organization)

Other opinions cited:

• N.Y. State 173 (1970): part-time public defender and co-defendants with conflicting interests
• N.Y. State 592 (1988) and N.Y. State 462 (1977): imputation across a public defender office

See also

• NY State Bar Op. 859: Part-time government attorneys' conflicts
• NY State Bar Op. 876: Conflicts when a lawyer is associated with two firms
• NY State Bar Op. 881: Spouses sharing office facilities

Source

• Landing page: https://nysba.org/ethics-opinion-862/