Ezel / Ethics Opinions / NYSBA
NYSBA October 16, 2012

Can a lawyer serve as attorney for a child when the lawyer's spouse, a public defender, represents another party in the case?

Short answer: Yes, unless the circumstances create a Rule 1.7(a)(2) personal-interest or Rule 1.10(h) spousal conflict and the child has no representative who can consent to it. A child cannot consent to the conflict alone.

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This page answers the general question as of 2012. Ezel answers yours: whether it's allowed on your facts, under the current New York Rules of Professional Conduct, with citations.

Currency note: this opinion is from 2012
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.
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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 on this page) is the authoritative source for any reliance.

Plain-English summary

Attorney X is on a county Attorneys for Children Program panel and serves as "attorney for the child." X's spouse is an Assistant Public Defender in the same county, and the petitioner or respondent in X's cases is often represented by the spouse or another lawyer from that Public Defender's Office. The committee concludes X may serve unless a conflict arises under Rule 1.7(a)(2) or Rule 1.10(h) and the child cannot consent.

The committee analyzes three rules. Rule 1.10(h) directly addresses spouse-versus-spouse situations: a lawyer related to opposing counsel as a spouse may not represent a client whose interests differ from a party the spouse represents unless the client consents after full disclosure and the lawyer concludes the representation will be adequate. But a child generally cannot consent alone (citing N.Y. State 895 (2011) and earlier opinions); consent may be possible only through a law guardian or other representative with power to consent, which is a question of law the committee cannot resolve. Rule 1.7(a)(2) addresses personal-interest conflicts: X may be barred if a reasonable lawyer would find a significant risk that X's judgment for the child would be adversely affected by X's personal interest in the spouse's employer, which depends on fact-specific factors (the spouse's position and job security, the relationship to the assigned defender, whether interests are aligned, publicity), with a heightened risk when the spouse personally is opposing counsel.

On imputation, the committee holds the AFC Program is not a "law firm" under Rule 1.0(h): the panel members share only a common purpose and a common administrator that assigns cases and pays reimbursement, which does not make them a firm (comparing Rosenblum with N.Y. State 804). So an X conflict is not imputed to other panel lawyers. The Public Defender's Office, by contrast, is a firm (N.Y. State 862 (2011)), so personal-interest conflicts there are mutually imputed under Rule 1.10(a), and an assigned defender may have a "mirror-image" Rule 1.7(a)(2) conflict that that office's client could consent to, though that consent would not cure any conflict of X's. The committee adds that X should follow Rule 1.14(a) and try to maintain a conventional client relationship with the child.

Common questions

Q: Can I represent a child when my spouse, a public defender, is on the other side?

A: Yes, conditionally. Per paragraph 17, you may serve unless the situation creates a Rule 1.7(a)(2) or Rule 1.10(h) conflict and the child has no representative who can consent to it.

Q: Can a child consent to the conflict?

A: Not alone. Per paragraph 8, the committee (following N.Y. State 895) holds a minor cannot consent by himself or herself; consent may be possible only through a law guardian or other representative with the legal power to consent.

Q: Is the Attorneys for Children panel a "firm" that imputes conflicts among its members?

A: No. Per paragraphs 12 and 13, the panel falls outside Rule 1.0(h)'s firm definition, so a conflict is not imputed to other panel lawyers, unlike the Public Defender's Office, which is a firm.

Background and rules framework

The opinion interprets New York Rule 1.10(h) (Model Rule 1.10, conflicts between related lawyers), Rule 1.7(a)(2) and (b) (Model Rule 1.7, personal-interest conflicts and the conditions for consent), Rule 1.10(a) and (d) (Model Rule 1.10, imputation and waiver of imputed conflicts), and Rule 1.0(h) (Model Rule 1.0, the definition of "firm"). It applies Rule 1.14(a) on maintaining a conventional relationship with a client under a disability.

Citations and references

Rules of Professional Conduct:

  • MR 1.10 / NY Rule 1.10(h) (related-lawyer conflicts), 1.10(a), (d) (imputation; waiver)
  • MR 1.7 / NY Rule 1.7(a)(2), (b) (personal-interest conflicts; consent conditions)
  • MR 1.0 / NY Rule 1.0(h) (definition of "firm")

Cases:

  • Rosenblum v. Great Neck Teachers Ass'n Benefit Trust Fund, 36 Misc. 3d 1203(A) (Nassau County Sup. Ct. 2012), an organization that refers to a panel of lawyers is not a "law firm."

Other opinions cited:

  • N.Y. State 895 (2011): a minor cannot consent to a conflict alone; spousal-conflict factor analysis.
  • N.Y. State 862 (2011): a Public Defender's Office is a "firm."
  • N.Y. State 804 (2006): independent practitioners in a qualified legal services corporation can be a "firm."

See also

Source

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