NEW YORK STATE BAR ASSOCIATIONProfessional
Ethics Committee Opinions
Opinion #227 - 01/26/1972
Clarified by 492
Topic: Confidences of a Client Prosecuting Attorney, Former
Digest: District Attorney may not normally prosecute defendant
represented by Assistant District Attorney at Arraignment
Code: EC 4-6; EC 9-6; DR 5-105(D)
Does the appointment of an Assistant District Attorney, who
represented a defendant at his arraignment, disqualify the entire
District Attorney's staff from prosecuting the defendant?
This Committee has previously held that an attorney may not properly
defend a client against a charge which was under investigation by the
District Attorney's Office while the attorney was a part-time Assistant
in such office. N.Y. State 52 (1967). We also held that a former School
Board Attorney could not represent a citizens group to question matters
for which he had had a substantial responsibility while the Board's
attorney. N.Y. State 176 (1971). The Committee also held that an
attorney, who has changed law firms, may not represent the adverse party
in a transaction handled by his former firm while he was there even
though he was unaware of the details of the transaction. N.Y. State 180
It appears clearly improper for a lawyer to switch sides in
litigation. He must preserve the confidences of his client even after
termination of employment EC 4-6.
This Committee has held that, if it is improper for one member or
associate of a firm to represent a client in a particular matter, then
all members and associates of that firm are also subject to the same
prohibition. DR 5-105(D); N.Y. State 40 (1966); N.Y. State 82 (1968);
N.Y. State 118 (1969); N.Y. State 203 (1971); N.Y. State 214 (1971). A
District Attorney's office is comparable to a legal partnership. N.Y.
State 118 (1969).
In the absence of waiver by the defendant, the newly appointed
Assistant District Attorney would be prohibited from prosecuting the
case because of his former representation of the defendant. Thus, it
would be normally improper for any member of the staff, including the
District Attorney himself, to prosecute the defendant. This, of course,
does not prohibit the employment of special counsel or the use of a
member of the staff of the District Attorney from an adjoining
However, in addition to being a matter of professional conduct, the
disqualification of a public prosecuting agency is a matter of law to be
determined by the courts, United States v. Standard Oil Co., 139 F Supp.
345 (SDNY 1955); cf. People v. Wilkins, 28 N.Y 2d 53 (1971), upon which
this Committee does not pass.
Even if the District Attorney's staff is not disqualified as a matter
of law, the District Attorney has a minimal ethical duty to promptly
notify the defendant and the court of the facts so that they may take
what action they are advised.