Ethics Opinion 788
NEW YORK STATE BAR ASSOCIATION
Conflict of interest, prosecutors
Committee on Professional Ethics
|Opinion #788 – 10/21/2005||Topic: Part-time prosecutor represents criminal defendant in a civil matter, conflict of interest, imputation.|
|Digest: A lawyer who has a private practice and serves as a part-time assistant district attorney may not represent a client in a civil matter where the client is being prosecuted by the district attorney’s office. The conflict cannot be cured by consent.|
|Code: DR 2?110(B)(2), 5?105(B), 5?105(D), 5?108(A)(1).|
1. The inquirer is a lawyer in private practice who also serves as a part-time assistant district attorney in a small district attorney’s office. He shares an office in the district attorney’s office and attends staff meetings at which cases are discussed. In his private practice, the inquirer represents a husband and wife in revising their wills. After an initial interview, which resulted in the inquirer requesting certain additional information, the inquirer learns that the district attorney’s office in which he works has begun a prosecution of the husband. May the inquirer continue to represent the husband? If there is a conflict of interest, may the conflict be cured by consent?
2. The Committee concludes that the inquirer may not continue the representation of the husband when the district attorney’s office in which the inquirer works is prosecuting the husband. We also conclude that the conflict cannot be cured by consent of the district attorney’s office and the private client.
3. DR 5-105(B) bars a lawyer from concurrent representation of two or more clients if it would “involve the lawyer in representing differing interests,” unless each client consents. We have held that part-time prosecutors are limited by DR 5-105 from undertaking certain kinds of work in their private practice: for example, they may not represent criminal defendants in New York State courtsor in suing the governmental entity that employs them. Such conflicts are imputed to partners and associates of the part-time prosecutor. This inquiry involves the reverse situation: whether the conflicts of other prosecutors in the office are imputed to the part-time prosecutor so as to bar the part-time prosecutor from conflicting representations in his or her private practice.
4. DR 5?105(D) imputes conflicts under DR 5?105(B) to all lawyers “associated in a law firm.” A law firm is defined in the Code of Professional Responsibility (the “Code”) to include “the legal department of a corporation or other organization.” This Committee has repeatedly held that a district attorney’s office should be treated as a law firm for purposes of DR 5?105(D). We recognize that a part-time prosecutor’s affiliation with the district attorney’s office may not be as extensive as that of a typical partner or associate in a law firm. However, the part-time prosecutor has full access to the office’s information, attends staff meetings and carries on the work of the office in much the same way that other prosecutors do. His or her affiliation with the district attorney’s office is at least as extensive as most of?counsel lawyers’ affiliation with their law firms,which this committee and others have held gives rise to imputation. A fortiori, because of a greater need to avoid the appearance of impropriety in government, the imputation of conflicts that applies to most “of counsel” lawyers applies to a part-time prosecutor.
5. Given that there is a conflict of interest, may it be waived? In N.Y. State 657 (1993), we stated that the conflict arising from a part-time prosecutor’s acting as criminal defense counsel in New York State courts was not waivable. In that opinion we said, “Because the role of the prosecutor and the defense lawyer are inherently incompatible and the prosecutor has special responsibilities to the public, consent cannot cure the conflict because it is not obvious that the lawyer can adequately represent the Town and the private client.” While the inquirer does not seek to act as defense counsel in criminal cases, we believe the same conclusion applies. The risk of the public perceiving favoritism at the prosecutor’s office precludes waiver of the conflict.
6. The Code does not prescribe which representation a lawyer must withdraw from when presented with a non-waivable conflict,but we have said that “[a]s a general rule, disqualification of the entire District Attorney’s office is warranted only upon a finding of actual prejudice, a real conflict of interest or the risk of misusing confidences.” In this case, where the withdrawal of the entire district attorney’s office would require appointment of a special prosecutor to prosecute the husband, and where the estate-planning representation is at an early stage, we believe the inquirer should withdraw from representing the husband. If the facts were different, as when withdrawal from representing the private client would cause substantial prejudice to the client, the lawyer may be required to withdraw from the district attorney’s office.
7. There are also situations in which withdrawal from representing the husband or withdrawal from the district attorney’s office might not be sufficient, so that the district attorney’s office would be required to withdraw from the prosecution. Under DR 5-108(A)(1), if the representation of the husband and the criminal prosecution are “substantially related,” the inquirer would have a disqualifying conflict of interest that would be imputed to the district attorney’s office under DR 5-105(D) and would prevent the entire district attorney’s office from proceeding against a former client of one of its prosecutors. “The most important factor [in determining whether two matters are substantially related] is whether the . . . lawyer did or could have obtained confidences and secrets in the former representation that should be used against the former client in the current representation.” If the criminal prosecution involves allegations of secreting assets, for example, an estate-planning representation might be substantially related to that prosecution, requiring appointment of a special prosecutor. If the alleged crime is a traffic offense, however, that is unlikely.
8. The questions are answered in the negative.(11-05)