NEW YORK STATE BAR ASSOCIATIONCommittee on
Opinion #315 - 12/18/1973
Modified by 544
Topic: Town attorney holding position as public defender
Digest: Part-time town attorney may hold position as part-time public
defender if he has no duties of prosecution, does not represent clients
in court of the town he represents, and no violation or construction of
town ordinance is involved
Code: DR 5 -105(A) Canon 9
Is it proper for a lawyer to hold both the position of Town Attorney
and County Public Defender?
Since this Committee does not pass on questions of law, it is assumed
for the purpose of this opinion that both positions are parttime
and that there is no legal obstacle to a lawyer holding the positions of
County Public Defender and Town Attorney. See, 68 Op. Atty. Gen. 35; Op.
State Compt. 69-100.
It has been held a number of times that a part-time town attorney may
practice criminal law without conflict of interest or appearance of
impropriety if (1) he has no statutory or other responsibility for
prosecution of criminal proceedings on behalf of the town or duties
closely related thereto, (2) he does not represent private clients
before a town justice in the town he represents, and (3) a violation or
construction of an ordinance of that town is not involved. N.Y. State
234 (1972); ABA Inf. 1045 (1968); ABA Inf. 1111(1969); ABA 34
The same rule is applicable to the practice of law as a public
defender. It would not be proper for the same individual to serve both
as village attorney and as public defender if his employment includes
the duty of prosecuting. N.Y. State 23 (1965). If, in the present case,
the town attorney by statute, ordinance, or resolution does not have any
duties as a prosecutor or those closely related thereto, there would be
no inherent conflict in the duties of the two positions, and it would
not be improper for him also to hold the position of public
But such practice would be subject to the same limitations as the
private practice of criminal law, i.e., the public defender should not
represent criminal clients before a town justice of the town he
represents or when the violation or construction of an ordinance of that
town is involved. Such a representation would constitute a conflict
of interest and create an appearance of impropriety.
It is not the function of this Committee to advise how a part-time
public defender shall meet his obligations in this or any other case
where a conflict of interest may arise. The problem should be
resolved by such arrangement, in the light of the high responsibility
resting on the Bar to defend indigent persons, that there shall be no
impropriety or appearance of impropriety in such a situation. See, N.Y.
State 33 (1966); DR 5-105(A); Canon 9; Edelman v. Levy , 42 A.D. 2d 758,
346 N.Y.S. 2d 347 (2nd Dept. 1973).