Can a public defender or assistant public defender keep a separate private practice in the same Criminal Court where they appear for the office?

Plain-English summary

A county Public Defender has a policy permitting his full-time and part-time assistants (and himself) to practice privately in criminal or civil matters, as long as there is no conflict and full-time attorneys do private work outside business hours. He asks whether they may represent private clients in the same Criminal Court where they appear for the Public Defender's Office. The committee concludes they may.

The committee finds no rule expressly prohibiting it, noting prior opinions addressed specific public-defender/private-client scenarios without suggesting any per se bar (N.Y. State 862, 587, 518). It works through Rule 1.11, the rule on conflicts for current and former government officers. The ordinary-conflict portions (Rule 1.11(a)(1), (b), (c)) do not control because the inquirer's attorneys will abide by the conflict rules in deciding whether to take a retained case. Rule 1.11(a)(2), which limits representing a private client in a matter the lawyer worked on as a public employee, would prevent a defender from switching a single client's matter from public to private representation, and reflects the concern that the office "not be perceived as a feeder in building a private law practice" (N.Y. State 587); but there is no suggestion the inquirer's lawyers steer office clients to their private practice, so that provision does not control either.

The provision closest to the question is Rule 1.11(f)(2), which bars a lawyer holding public office from using that office to influence a tribunal in favor of the lawyer or a client. The committee finds it hard to see how a public defender appearing privately would use the office to influence the court: in both capacities the lawyer seeks effective client representation, and the office carries no power to influence a tribunal beyond appropriate advocacy, so Rule 1.11(f) does not bar the model. The committee contrasts this with part-time prosecutors and municipal attorneys, whose non-waivable conflicts prevent them from defending criminal cases or suing their employing entity (N.Y. State 788, 657, 544, 218), explaining that a public defender's true clients are "indigents accused of crime rather than the county." It cautions that the lawyers must still meet all conflict rules and pay special attention to Rule 1.3 diligence, giving equal priority to public and private clients (N.Y. State 260).

In practice

The opinion holds that, under the New York rules as they stood in 2012, a public defender or assistant may maintain a separate private practice in the same Criminal Court where the office appears. The committee identifies the controlling limits as Rule 1.11(a)(2) (no carrying a single client's matter from public to private representation, and no steering office clients to private practice) and Rule 1.11(f)(2) (no use of the public office to influence the tribunal), neither of which the inquirer's model offends, plus the ongoing duties to clear conflicts and to meet Rule 1.3 diligence for both public and private clients.

Common questions

Q: Can an assistant public defender take private criminal cases in the same court?

A: Yes. Per paragraph 10, a public defender or assistant may represent private clients in a separate practice in the same Criminal Court where they appear in their public capacity, subject to the conflict and diligence rules.

Q: What does Rule 1.11 forbid here?

A: Carrying a client's matter from public to private, and using the office to sway the court. Per paragraphs 6 and 7, Rule 1.11(a)(2) bars representing a private client in a matter handled as a public employee, and Rule 1.11(f)(2) bars using public office to influence a tribunal.

Q: Why are public defenders treated differently from part-time prosecutors?

A: Because of whom they serve. Per paragraph 8, the committee reasons a public defender's true clients are indigent defendants, not the county, so the non-waivable conflicts that bar part-time prosecutors from criminal defense do not apply.

Background and rules framework

The opinion interprets New York Rule 1.11 (Model Rule 1.11, special conflicts for current and former government officers, including Rule 1.11(a)(2) on matters handled in public service and Rule 1.11(f)(2) on use of public office), alongside the general conflict rules and Rule 1.3 (Model Rule 1.3, diligence). It distinguishes the treatment of public defenders from that of part-time prosecutors and municipal attorneys.

Citations and references

Rules of Professional Conduct:

• MR 1.11 / NY Rule 1.11(a)(2), (f)(2) (matters handled in public service; use of public office)
• MR 1.3 / NY Rule 1.3(a) (diligence and promptness)

Other opinions cited:

• N.Y. State 862 (2011), 587 (1987), 518 (1980): public defenders representing private clients; imputation and limits.
• N.Y. State 788 (2005), 657 (1993), 544 (1982), 218 (1971): non-waivable conflicts barring part-time prosecutors from criminal defense.
• N.Y. State 260 (1987): a public defender's duty of equal priority to public and private matters.

See also

• NY State Bar Op. 941: Conflict when a lawyer's spouse is a public defender
• NY State Bar Op. 957: Lawyer providing legal services through a nonprofit agency
• NY State Bar Op. 1037: Government lawyers submitting position papers instead of attending status hearings

Source

• Landing page: https://nysba.org/ethics-opinion-935/