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Opinion #462 - 03/17/1977 (14-77)

Topic: Conflict of Interest; Public Defender

Digest: Public defender and assistant public defender may not represent co-defendants with conflicting interests.

Code: EC 5-15; DR 5-105(D)

QUESTION

May a Public Defender and an Assistant Public Defender, both regularly employed on a part-time basis by the Public Defender's Office but maintaining separate offices in different villages of the same county, properly represent co-defendants with conflicting interests?

OPINION

In N.Y. State 173 (1970), we held that co-defendants with conflicting interests cannot both be represented by the Public Defender's Office or members of its staff in either their private or public capacities. We have insisted that in all such cases special counsel, wholly independent from and unrelated to the Public Defender, be retained to represent co-defendants having interests in conflict with those represented by his office.

Our rule is grounded upon the principle that lawyers should not undertake to represent in litigation clients with conflicting interests. EC 5-15. In this context, the Public Defender and all subordinate personnel regularly employed by his office are considered as one. Thus, in N.Y. State 313 (1973), we compared the Public Defender's staff to that of the District Attorney and lawyers in private practice for the purpose of applying the provisions of DR 5-105(D), explaining:

"[T]he district attorney's staff as well as the public defender's staff are each subject to the same rule as would apply to a partnership, namely 'if it is improper for one member or associate of a firm to represent a client in a particular matter, than all members and associates of that firm are also subject to the same prohibition.’ ”

Also, see, NY State 260 (1972), NY State 254 (1972), NY State 227 (1972) and NY State 102 (1969).

N.Y. State 33 (1966), which apparently permits an "Assistant Public Defender" to represent co-defendants having interests conflicting with persons represented by the Public Defender, is in no way inconsistent with the foregoing authorities. For, despite the title given to the lawyer in that case, he was in fact special counsel appointed to serve only where, by reason of a conflict, the Public Defender could not properly represent the accused and he was otherwise wholly independent from the Public Defender's Office

The location of the Assistant Public Defender's office is of no relevance to the ethical rule in this case. Whether or not he is physically present at the office maintained by the Public Defender, he remains part of the Public Defender's staff and is regularly employed in that capacity.

For the reasons stated, the question posed must be answered in the negative.