NYSBA 2012-06-29

Can a criminal defense lawyer keep representing a client when her law partner is in business with a part-time assistant DA in the prosecuting office?

Short answer: Yes, on these facts. The opinion treats the partner's business relationship as a personal-interest conflict imputed to the firm under Rule 1.10(a), finds no significant risk to the partner's judgment because a different prosecutor handles the case, and holds that even if a conflict existed it is waivable by the defense client's informed written consent alone.

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 Not binding precedent.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 925: Defense counsel whose partner is in business with a prosecutor

Short answer: A criminal defense lawyer may continue representing a client after joining a firm whose partner has a business relationship with a part-time assistant district attorney in the prosecuting office, where a different assistant district attorney prosecutes the client; any imputed personal-interest conflict is waivable by the defense client's informed written consent, and the People's consent is not required.

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 criminal defense lawyer continued representing a client after joining a three-lawyer firm. One of her partners co-owns two LLCs (a real estate business and a restaurant venture) with a part-time assistant district attorney (the A.D.A.) in the county where the client's charges are pending; that A.D.A. does not practice criminal defense and a different assistant district attorney (the Prosecutor) handles the client's case. The partner had assured the District Attorney he would not practice criminal defense in the county, and the Prosecutor argued the firm could not represent the client absent the District Attorney's consent, which the office said it could not give. The court referred the conflict question to the committee.

The opinion frames this as a personal-interest conflict under Rule 1.7(a)(2), which bars a representation where a reasonable lawyer would conclude there is a significant risk that the lawyer's professional judgment will be adversely affected by the lawyer's own financial, business, property, or other personal interests. It stresses that the Rules did not carry forward the old Code's "appearance of impropriety" standard or the "reasonable probability"/"would tend" language of former E.C. 5-2; only an actual Rule 1.7(a)(2) conflict matters. Following N.Y. State 583 (fact-specific, no per se bar) rather than N.Y. State 413 (which addressed the prosecutor's side, where the People cannot waive), the opinion analyzes the conflict from the partner's standpoint because Rule 1.10(a) imputes the partner's personal interest to the inquirer and the firm.

On the facts supplied, the opinion cannot find a "significant" risk (described, citing Simon, as more than a possibility but less than a certainty) that the outcome of the client's case will affect the partner's business with the A.D.A. or cause disloyalty or disclosure of confidences, largely because a different prosecutor handles the case and the A.D.A. gains or loses nothing from its result. It cautions that additional facts (the size of the investment, the degree of financial interdependence) could change the analysis. Even if an actual conflict existed, the opinion holds it would be waivable: Rule 1.10(d) lets an imputed disqualification be waived under Rule 1.7(b), whose conditions (competent and diligent representation; informed consent confirmed in writing) the opinion concludes can be met. Crucially, only "affected clients" must consent, and the only affected client is the defense client, not the People; the firm never represented the People, so (distinguishing N.Y. State 413 and citing N.Y. State 862) the District Attorney's inability to consent does not matter.

In practice

Under this opinion, and under the New York rules as they stood at the time, the relevant question is the actual Rule 1.7(a)(2) risk, measured by the magnitude of the partner's business relationship and its connection to the partner's judgment for the client, not the "appearance of impropriety." Where, as here, a different prosecutor handles the case and the business-partner A.D.A. has no stake in its outcome, the opinion finds no significant risk on the facts presented. Because the conflict, if any, is the partner's personal interest imputed under Rule 1.10(a), it is waivable under Rule 1.10(d) and Rule 1.7(b) by the defense client's informed written consent; the prosecution's consent is not part of the analysis because the firm represents only the defendant.

Common questions

Q: Does a partner's business deal with a part-time prosecutor disqualify the whole defense firm?

A: Not automatically. The opinion treats it as a Rule 1.7(a)(2) personal-interest conflict imputed under Rule 1.10(a) and finds, on these facts, no significant risk to the partner's judgment, in part because a different prosecutor handles the case.

Q: Does the "appearance of impropriety" matter?

A: No. The opinion states that the Rules of Professional Conduct did not carry forward the old Code's "appearance of impropriety" standard; only an actual conflict under Rule 1.7(a)(2) is relevant.

Q: If there were a conflict, could it be waived?

A: Yes. Rule 1.10(d) allows the imputed disqualification to be waived under Rule 1.7(b), and the opinion concludes its conditions, including the client's informed consent confirmed in writing, can be satisfied here.

Q: Does the District Attorney's office have to consent?

A: No. The opinion holds that only "affected clients" must consent, and the only affected client is the defendant; because the firm never represented the People, the District Attorney's inability to consent does not bar the representation.

Background and rules framework

The opinion applies Rule 1.7(a)(2) (Model Rule 1.7) on personal-interest conflicts, with Comments 10 and 11, and Rule 1.7(b) on the conditions for proceeding with consent. It applies Rule 1.10(a) (Model Rule 1.10) to impute the partner's personal interest across the firm and Rule 1.10(d) to allow waiver under Rule 1.7. The Rule 1.0(j) definition of informed consent and its flexible-concept Comment 6 frame the consent analysis.

Citations and references

Rules of Professional Conduct:

MR 1.7 / NY 1.7(a)(2), 1.7(b), Comments 6, 10, 11 (personal-interest conflict; consent)
MR 1.10 / NY 1.10(a), 1.10(d) (imputation; waiver of imputed disqualification)
NY 1.0(j) (informed consent)

Other opinions cited:

N.Y. State 413 (1975): an assistant district attorney may not enter a business relationship with a defense lawyer in the same jurisdiction; the People cannot waive (prosecutor's-side analysis)
N.Y. State 583 (1987): no per se bar; outcome is fact-specific (size of investment, degree of influence)
N.Y. State 862 (2011): where the conflict is an assistant public defender's personal interest, only the inquirer's own assigned client must consent

Source

Landing page: https://nysba.org/ethics-opinion-925/