Ethics Opinion 149

Ethics Opinion 149

7.20.1970

By Committee on Professional Ethics

NEW YORK STATE BAR ASSOCIATION

Professional Ethics Committee Opinion

Opinion #149 – 07/20/1970 (24-70)
Topic: Conflict of Interest; Public Attorneys; Private Representation
Digest: Attorneys who are the part-tine legal staff of a city should not represent private clients in criminal matters before the same tribunals before which they appear as prosecutors on behalf of the city

Code:  DR 5-105 (A),  (B) and (C) Former Canon 6

QUESTION

May members of the part-time legal staff of a city’s Corporation Counsel represent private defendants in criminal proceedings?

OPINION

DR 5-105 (A), (B) and (C) provide:”(A)      A lawyer shall decline proffered employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment, except to the extent permitted under DR 5-05 (C)”(B)      A lawyer shall not continue multiple employment if the exercise of his independent professional judgement in behalf of a client will be or is likely to be adversely affected by his representation of another client, except to the extent permitted under DR 5105 (C).”(C)      In the situations covered by DR 5-105 (A) and (B), a lawyer may represent multiple clients if it is obvious that he can adequately represent the interest of each and if each consents to the representation after full disclosure of the possible effect of such representation on the exercise of his independent professional judgment on behalf of each.”The consent based upon full disclosure that is mentioned (C) cannot be utilized by one who has an official position. Opinions 16, 34, 71, 77 and 192.)If the duties of a city’s Corporation Counsel or his legal staff include prosecution in any court of offenders against criminal statutes or municipal ordinances, it would be improper for any of them to defend any person accused of a crime in any court in which they have authority to appear as prosecutors. See ABA Opinion 34 (1931) and ABA Opinion 128 (1935).A prosecutor represents the authority of the state and he cannot therefore represent anyone being prosecuted by a public authority. If this were not so, the client might suffer from a subjective hesitancy on the part of the attorney to assert all appropriate defenses, such as challenges to constitutionality of statutes or ordinances or jurisdiction or authority of the city or its agents.There would also be harm to the reputation of the bar because the public might be led to believe that the selection of such counsel by defendants had an ulterior motive and was based on considerations other than legal ability. (See ABA Opinion 128 (1935). The public should be reassured that the processes of all its courts are free of favor or prejudice.For these reasons it is the opinion of the Committee that neither the Corporation Counsel nor any member of his legal staff may properly represent private defendants in criminal matters in any tribunal before which they may appear as prosecutors on behalf of the city.This would not be true if the Corporation Counsel had no authority as a prosecutor but dealt only with civil matters provided no conflict exists in the particular case.