NYSBA Ethics Opinion 40

By Committee on Professional Ethics

NEW YORK STATE BAR ASSOCIATION
Professional Ethics Committee Opinion

Opinion #40 – 12/22/1966 (20-66)

Topic: Conflict of Interest, Partner of Part-Time Dist. Atty.
Digest:  Partner of part-time Asst. Dist. Attorney may not appear in defense of clients in traffic or misdemeanor cases in same county where partner is Asst. Dist. Atty.
Canon: Former Canon 6

QUESTION

Is it proper for a lawyer to engage in the defense of traffic cases and minor misdemeanors before the Justice’s Courts and before the Courts of Special Sessions in the same County in which his law partner serves on a part-time basis as an Assistant District Attorney engaged only in the prosecution of criminal matters in the County Court?

OPINION

Under Canon 6 attorneys may not represent conflicting interests without the consent of the clients after full disclosure and understanding by the clients of the consequences. The relationship between partners of a law firm is so close that the firm and all members there­of are precluded from accepting employment from which any one member is barred.   ABA Opinions Nos. 33, 49, 50, 72, 103, 296 and ABA Informal Opinion 855.  This is true irrespective of whether the lawyer involved serves the firm on a full or part-time basis.  ABA Informal Opinion No. 674.  Also, it is true irrespective of whether the lawyer is a partner or an associate of the law firm as both are engaged in carrying on the practice of the firm.  ABA Opinion No. 306 and Informal Opinion No. 674.Service by a lawyer in a public capacity carries the same restrictions as to conflict of interest as service for private clients. ABA Opinion No. 128.In this case the Assistant District Attorney could not represent both the public interest and defendants being prosecuted by the District Attorney’s office and his law partners and associates would also be precluded from doing so.  ABA Opinion No. 142 and ABA Informal Opinion No. 284.  No question of consent is involved because the public cannot give its consent to a conflict of interest.   ABA Opinion No. 16.Attorneys should avoid not only impropriety but the appearance of impropriety as well.  ABA Opinions Nos. 49 and so.Accordingly, it is the opinion of this Committee that the lawyer in question may not properly represent defendants in traffic or misdemeanor cases in the same county in which his partner is Assistant District Attorney.

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