NYSBA 1994-08-03

A part-time City Court judge shares a law firm with a part-time assistant district attorney. What criminal and civil work can each of them, and the rest of the DA's office, take on?

Short answer: The opinion concluded that because the part-time assistant DA cannot defend criminal cases anywhere in the state, the associated part-time judge (and the whole firm) is also barred from criminal defense; the assistant DA may not appear in the judge's court, but other members of the DA's office may.

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 Not binding precedent.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 670: A part-time judge and a part-time assistant DA in the same firm

Short answer: The opinion concluded that, because a part-time assistant district attorney may not defend criminal cases anywhere in New York, a part-time judge associated with that assistant in private practice (and every other member of the firm) is likewise barred from criminal defense; the assistant may not appear before the judge, but other members of the district attorney's office may appear in the judge's court.

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 law firm had two relevant lawyers: a partner recently elected a part-time City Court judge, and an associate who was a part-time assistant district attorney, both in County X. The committee addressed what each could do and how their roles limited the firm and the rest of the prosecutor's office.

Starting with the assistant district attorney, the committee restated its consistent rule that a lawyer with prosecutorial responsibilities as an incident of part-time public employment is disqualified from the private practice of criminal law in all courts of the state (N.Y. State 544 (1982)), grounded in DR 5-105(A) and the inherent incompatibility of the prosecutor and defense roles. Client consent cannot cure that conflict (N.Y. State 657 (1993)). So the assistant could not defend criminal cases anywhere.

The committee then applied DR 5-105(D), which forbids any lawyer in a firm from accepting work that a colleague practicing alone would be barred from taking under the enumerated rules. Because the assistant could not defend criminal cases, the associated judge, and any member of the firm, was automatically disqualified from criminal defense while the assistant remained an associate. The firm could still associate the judge and assistant so long as the practice was limited to civil matters. On this point the committee overruled N.Y. State 214 (1971) and 280 (1972), which predated 22 NYCRR 100.5(f).

As to the judge's own practice, the committee noted the Rules of the Chief Administrator (22 NYCRR 100.5(f)) bar a part-time judge from appearing in his own court or in any court in the same county presided over by another part-time judge, but otherwise permit private practice. The same rule limits the judge's partners and associates only by barring them from practicing in the judge's court; on that narrower point the committee modified N.Y. State 118 (1969).

Finally, the committee held the disqualification of the assistant did not require disqualifying the entire district attorney's office from appearing before the judge. Because the assistant's bar rested on 22 NYCRR 100.5(f) rather than one of the rules that trigger automatic imputation under DR 5-105(D), vicarious disqualification turned on the facts: generally there must be actual prejudice, a real conflict, or a risk of misusing confidences (N.Y. State 638 (1992); N.Y. State 654 (1993)). The committee found those concerns too attenuated here, so other assistants in the office could appear before the judge, though screening the associate/assistant from such matters would be prudent.

Currency note

This opinion was issued in 1994, under New York's former Code of Professional Responsibility, which New York replaced with the Rules of Professional Conduct in 2009. The court-administration rules it cites have also been renumbered and revised. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a part-time judge defend criminal cases if a firm associate is a part-time assistant DA?

A: Under this opinion, no. Because the assistant DA cannot defend criminal cases anywhere in the state, DR 5-105(D) imputes that bar to the judge and the whole firm; the firm's practice with the assistant must be limited to civil matters.

Q: Can the assistant DA appear in the judge-partner's court?

A: No. The court-administration rule (22 NYCRR 100.5(f)) bars the judge's partners and associates from practicing in the judge's own court, though they may appear elsewhere.

Q: Are all of the DA's other assistants disqualified from the judge's court?

A: The opinion concluded no. Because the assistant's disqualification rested on the court-administration rule rather than an automatic-imputation rule, the committee found no actual prejudice or real conflict requiring office-wide disqualification, so other assistants may appear before the judge.

Background and rules framework

The opinion interpreted New York's former Code, principally DR 5-105(A) and (D) (concurrent conflicts and their imputation within a firm), DR 5-101(A) (personal-interest conflicts), and DR 9-101(B), alongside the Rules of the Chief Administrator of the Courts at 22 NYCRR 100.5(f) governing part-time judges. The closest Model Rule analogues are Rule 1.10 (imputation of conflicts), Rule 1.7 (concurrent conflicts), Rule 1.11 (former and current government officers), and Rule 3.8 (special responsibilities of a prosecutor). New York replaced the Code with the Rules of Professional Conduct in 2009; the provisions cited here are historical.

Citations and references

Rules of Professional Conduct:

MR 1.10 (imputation of conflicts of interest)
MR 1.7 (concurrent conflicts of interest)
MR 1.11 (government officers and employees)
MR 3.8 (special responsibilities of a prosecutor)
NY DR 5-101(A); DR 5-105(A)-(D); DR 9-101(B); 22 NYCRR 100.5(f)

Cases:

Solow v. W.R. Grace & Co., 83 N.Y.2d 303 (1994): screening sanctioned to avoid a conflict

Other opinions cited:

N.Y. State 544 (1982): part-time prosecutor barred from criminal defense statewide
N.Y. State 657 (1993): consent cannot cure the prosecutor/defender conflict
N.Y. State 638 (1992); N.Y. State 654 (1993): fact-based test for vicarious disqualification
This opinion overrules N.Y. State 214 (1971) and 280 (1972) and modifies N.Y. State 118 (1969)

Source

Landing page: https://nysba.org/opinion-670/