Ethics Opinion 173

By Committee on Professional Ethics

NEW YORK STATE BAR ASSOCIATION
Professional Ethics Committee Opinion

Opinion #173 – 12/11/1970 (57-70)

Modified by #587 (1987)
Topic: Part-time Public Defender; Private Criminal Practice
Digest: A part-time Public Defender may be privately retained to represent an accused who is not indigent and has not requested the services or the Public Defender’s Office if no conflict exists

QUESTION

1. Is it proper for a lawyer who serves as a Public Defender, on a part-time basis, to be retained to represent an accused who is not an indigent and who has not requested the services of the Public Defender’s Office?
2. Is such representation proper if the interests of a co-defendant represented by the Public Defender’s Office conflict with those of his client?

OPINION

It is proper for a lawyer who serves as a Public Defender on a part-time basis to be retained to represent an accused who is not indigent and who has not requested the services of the Public Defender’s Office prior to retaining the Public Defender. ABA Inf. 1112 (1969).N.Y. State 165 (1970) held that a part-time Assistant Public Defender could not, in his private capacity, represent a defendant who had been refused representation by the Public Defender’s Office as unqualified for public assistance. In the instant case, since the defendant never sought Public Defender aid and is not indigent, there is no appearance of impropriety. Accordingly, in the absence of a conflict of interest, the lawyer could properly represent the defendant as a private client.N.Y. State 171 (1970) which held that a part-time district attorney could not represent a criminal defendant is not applicable because the part-time district attorney is counsel for the State.Where there are co-defendants with conflicting interests, both cannot be represented by the Public Defender’s Office or by members of his staff, either in their private or public capacities. In such cases special counsel should be appointed. N.Y. State 33 (1966).N.Y. State 33 (1966) is not inconsistent with this opinion because H related to an “Assistant” Public Defender appointed solely to handle conflict of interest cases and not to serve as a regular member of the Public Defender’s Office.

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