Ethics Opinion 130

By Committee on Professional Ethics

Ethics Opinion 130

Professional Ethics Committee Opinion

Opinion #130 – 03/19/1970 (9-70)
Topic: Part-time District Attorney Conflict of Interest

Digest: Not proper for a part-time district attorney to represent a person certified as an addict under the Mental Hygiene Law in habeas corpus proceeding
Code: Canon 9, EC 9-2, DR 9-101


A part-time district attorney, who is permitted to practice in a county in New York, asks whether it would be ethically proper for him to represent in a habeas corpus proceeding a client who had been committed as a drug addict under the New York State Mental Hygiene Law. The People of the State are a party to the proceeding.


There are three sections of the New York State Mental Hygiene Law under which persons may be committed as drug addicts and committed to the control of the New York State Rehabilitation Commission. Under section 206 of the Mental Hygiene Law a person who is an addict may petition on his own initiative to be certified as an addict. Section 208 permits a person who has either been found guilty or pleaded guilty to a felony to be committed under this statute. Section 210 permits such commitment where the person involved has been indicted or charged with a felony and consents to commitment to the Narcotics Rehabilitation Commission. In each of these situations, it is the opinion of the Committee that it would be improper for the district attorney of the county where the relator in the habeas corpus proceeding is committed to represent him. The purpose of the habeas corpus proceeding in this situation is to have the court determine the validity of the original commitment. Since this is so, an unseemly impression may be created that the district attorney is a representative of both the People of the State and the relator. (Canon 9, EC 9-2, DR 9-101, Drinker, “Legal Ethics”, p. 118, ABA Inf. 922 (1966).)This is the opinion of the Committee even though the habeas corpus proceeding may be brought in a county other than the one in which the original indictment or proceedings had occurred.

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