Conflicted? Representing Criminal Defendants When Your Partner Becomes The District Attorney

Recently, the New York State Bar Association (N.Y.S.B.A.) Committee on Professional Ethics held that a lawyer may represent clients in a criminal defense case being prosecuted by the district attorney who was once a partner at the lawyer’s firm given that two conditions are met. The first is that the district attorney must have severed all ties with the firm. The second is that a reasonable lawyer would not conclude there is a significant risk that the lawyer’s professional judgment on behalf of the clients will be adversely affected by the former relationship with the district attorney.

New York Rule 1.7(a)(2) governs the inquiring attorney in this matter. It prohibits a lawyer from representing a client if “a reasonable lawyer would conclude that … there is a significant risk that the lawyer’s professional judgment on behalf of a client will be adversely affected by the lawyer’s … personal interests,” unless, under Rule 1.7(b), the conflict is consentable and the lawyer has obtained consent, confirmed in writing.

The district attorney in this inquiry, as a public official, is governed by Rule 1.11(d)(1), which states, “[e]xcept as law may otherwise expressly provide, a lawyer currently serving as a public officer or employee shall not … participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless under applicable law no one is, or by lawful delegation may be, authorized to act in the lawyer’s stead in the matter.”

The committee found that the inquirer must determine whether a reasonable lawyer would conclude that the attorney’s personal relationship with the district attorney would adversely affect the representation of clients in criminal matters for which the district attorney’s office is responsible. The committee reasoned that if the inquirer knows that the district attorney participated personally and substantially in a case while in private practice, the inquirer may explore the provisions of applicable law and may have an obligation to report such information to the tribunal.

To read the entire opinion, click here.


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