NEW YORK STATE BAR ASSOCIATIONProfessional
Ethics Committee Opinion
Opinion #40 - 12/22/1966
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
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?
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