Opinion #583 – 12/15/1987 (19-87)
Conflict of interests, dual practice, office sharing, partnership, prosecutors
Topic: Landlord-tenant relationship between assistant district attorney and assistant public defender; business relationship between assistant district attorney and spouse of a defense attorney
Digest: Unless terms or circumstances of arrangement will or reasonably may affect assistant district attorney’s professional judgment, an assistant district attorney may rent office space for consulting business from assistant public defender and assistant district attorney may employ spouse of a criminal defense attorney practicing law in the same county as the assistant district attorney or allow spouse to become a part owner or an officer or director of the consulting business
Code: Canon 9; EC5-2; DR2-104(A), 5-101(A)
An assistant district attorney proposes to start a consulting business whereby he would assist prospective college students and their families in the college selection and admissions processes. Consultation would be available in areas which include college selection, financial aid counseling, application procedures and interview preparation. The assistant district attorney intends to rent office space in an office building owned by an assistant public defender practicing law in the same county as the assistant district attorney. In addition, the assistant district attorney proposes to employ the wife of a criminal defense attorney principally practicing law in that same county.Is it permissible for an assistant district attorney to rent office space from an assistant public defender for a business unrelated to the law?Is it permissible for an assistant district attorney to employ the spouse of a criminal defense attorney, practicing law in the same county as the assistant district attorney, in a business unrelated to the law?Is it permissible for an assistant district attorney to allow the spouse of a criminal defense attorney practicing law in the same county as the assistant district attorney to contribute money toward a consulting business unrelated to the law, to own shares in and be part owner of the business, or to become an officer or director of the business?
Initially, we note that it is not improper for a lawyer to engage in a business other than the practice of law provided the lawyer does not violate any ethical or legal rules. NY State 307 (1973). A lawyer may not, however, accept employment resulting from unsolicited advice to obtain counsel or to take legal action, in violation of any statute or court rule. See DR 2-104(A); NY. State 493 (1978); N Y State 536 (1981). In this regard, while we do not rule on questions of law, an assistant district attorney should also consider the provisions of Judiciary Law §479. N.Y. State 493 (1978); NY. State 536 (1981).In answering the first question posed, we assume that the office space to be rented by the assistant district attorney is separate from the office from which the assistant public defender practices law. We do not reach the issue of whether a lawyer may share office space, which the lawyer uses for a non-legal business, with another lawyer who is a potential opposing advocate.*We believe that the proper analysis of the first question posed turns upon the application of DR5-101(A) to the facts of that case. DR5-101(A) provides:Except with the consent of his client after full disclosure, a lawyer shall not accept employment if the exercise of his professional judgment on behalf of his client will be or reasonably may be affected by his own financial, business, property, or personal interests.Depending on the financial arrangements and other business and personal circumstances, a rented office situation might involve relatively little danger that professional judgment would be improperly influenced or, on the other hand, substantial danger. For example, if the rental terms are especially favorable to one party or the other, or the continuation of the rental is of special importance to one or the other, that factor could influence the favored party’s judgments in matters in which the two parties have mutual but adversarial interests. The possibility exists that landlord or tenant would feel constrained to maintain amicable relations with the other. Thus, the lawyer’s own interests could come into conflict with his or her duty to exercise professional judgment solely in the interests of his or her clients. See DR5-101(A); N.Y. State 413 (1975). But see, ABA Inf. 1419 (1978). Accordingly, while we perceive no per se prohibition against rentals such as the one proposed, we believe that an assistant district attorney or other prosecutor or defense counsel should avoid financial or other business or personal interests, including rentals, that will or could reasonably affect the lawyer’s exercise of professional judgment solely on behalf of his or her client.A similar analysis under DR5-101(A) and EG 5-2 is applicable to the second and third questions. The factual question that the lawyer must determine is whether his professional judgment on behalf of his client will be or reasonably may be affected by his financial or personal interests in employing the spouse of a criminal defense attorney. The mere employment does not per se lead to the conclusion that the lawyer’s professional judgment will be or reasonably may be affected, but the circumstances and terms of such employment might. Similarly, if the spouse of the criminal defense attorney instead of becoming an employee contributes capital to the consulting business, owns shares or otherwise becomes a part owner, officer or director, the analysis does not change. The nature and extent of the particular involvement, e.g., the size of the investment, both relatively and absolutely, the degree of influence, etc., will determine whether the relationship is barred. An additional factor to be remembered is that because the assistant district attorney represents the People, consent cannot be obtained waiving the prohibition of DR5-101(A). See N.Y. State 453 (1976). It should also be noted that there is nothing inherent in the spousal relationship, by itself to disqualify or prohibit the proposed arrangement.For the reasons stated, subject to the qualifications set forth above, the questions posed are answered in the affirmative.NOTES*We note in passing, however, that this Committee has previously held that lawyers sharing office space are ethically prohibited from representing clients with opposing interests, such as adversaries in litigation See NY State 437 (1976) (improper for lawyer who shares office space with an assistant district attorney to represent criminal defendants in the courts where the district attorney and his assistants are representing the State); N Y. State 65(a) (1970) Other ethics committees have reached consistent results See, e g, ABA lnf. 995 (1967); NY County 461 (1957); NY. City 80-63 (1981) But see. ABA lnf. 1486 (1982), which held that it was permissible for lawyers to represent adverse interests in litigation where one lawyer rented space in the other lawyer’s office, provided that the client’s consent was obtained and that office procedures were established to assure that confidences and secrets were maintained In ABA Inf. 1486 (1982), however, none of the lawyers sharing office space was a public official; the presence of an assistant district attorney and the consequent involvement of the public trusts creates a heightened concern here for the need to avoid even the appearance of impropriety Canon 9.