NYSBA November 5, 2001

Can a former prosecutor now in a public defender or Legal Aid office defend people who were charged while the lawyer worked at the DA's office?

Short answer: The opinion concluded that a former prosecutor may defend criminal defendants charged during the lawyer's DA tenure as long as the lawyer did not participate personally and substantially in that defendant's investigation or prosecution and gained no relevant confidences, so the new representation would violate neither the duty of zealous representation nor the duty to protect the government's confidences; if the former prosecutor is disqualified, the new office may take the case only with screening, no share of the fee, and no appearance of impropriety.

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This page answers the general question as of 2001. Ezel answers yours: whether it's allowed on your facts, under the current New York Rules of Professional Conduct, with citations.

Disclaimer: Advisory only. Not binding precedent.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page) is the authoritative source for any reliance.

Plain-English summary

A lawyer who had handled white-collar prosecutions, appeals, post-conviction motions, and investigations in a twenty-attorney district attorney's office, and who occasionally covered for other prosecutors, moved to the appeals unit of a Legal Aid office. The committee was asked whether the lawyer could represent criminal defendants who were indicted or charged during the lawyer's DA tenure, limited to matters in which the lawyer had no role in the prosecution or investigation and received no confidential or non-public information.

The committee analyzed two provisions. DR 9-101(B)(1) bars a lawyer from representing a private client in a matter in which the lawyer participated personally and substantially as a public employee. The committee read "matter" to mean the specific prosecution of the specific defendant, so the rule does not categorically bar the former prosecutor from all cases that arose during the lawyer's tenure, only those in which the lawyer was personally and substantially involved. Separately, DR 4-101 and Canon 7 protect the former client (the government) and require zealous representation of the new client; if the former prosecutor had learned confidences or secrets relevant to the defendant's case, the representation could lead to a violation of those duties and would be barred.

The committee concluded the former prosecutor may represent such a defendant if the lawyer did not participate in a material way in the investigation or prosecution and did not learn confidences and secrets relevant to the defendant's case. Where the former prosecutor is disqualified under DR 9-101(B) or DR 4-101, the lawyer's current office may still represent the defendant if it screens the former prosecutor in accordance with DR 9-101(B), apportions the former prosecutor no part of the fee, and the representation presents no appearance of impropriety. The committee noted that DR 9-101(B)'s language derives from ABA Model Rule 1.11(a) and 18 U.S.C. section 207(a)(1)(B).

Currency note

This opinion was issued in 2001, under New York's former Code of Professional Responsibility, which New York replaced with the Rules of Professional Conduct in 2009. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Did the former prosecutor's prior office make every case from that period off-limits?

A: No. The opinion read DR 9-101(B) to bar only matters in which the lawyer participated personally and substantially, not every case charged during the lawyer's tenure.

Q: What confidences mattered?

A: The opinion looked to DR 4-101 and Canon 7: if the former prosecutor had learned confidences or secrets relevant to the defendant's case, the representation was barred because it could lead to a violation of those duties.

Q: Could the Legal Aid office take the case if the individual lawyer was disqualified?

A: Yes, on conditions. The opinion concluded the office could represent the defendant if it screened the former prosecutor, gave the lawyer no part of the fee, and there was no appearance of impropriety.

Background and rules framework

The opinion interpreted New York's former Code of Professional Responsibility: DR 9-101(B) (a lawyer's participation in a matter as a public employee), DR 4-101 (confidences and secrets), and Canon 7 (zealous representation). The Model Rule analogues are Rule 1.11 (successive government and private employment), Rule 1.9 (duties to former clients), and Rule 1.10 (imputation and screening). New York replaced this Code with the Rules of Professional Conduct in 2009; the DR numbers cited here are historical.

Citations and references

Rules of Professional Conduct:

MR 1.11 (former government officer); MR 1.9 (former clients); MR 1.10 (imputation)
NY DR 9-101(B), DR 4-101, Canon 7

Statutes:

18 U.S.C. section 207(a)(1)(B) (cited as the source of DR 9-101(B)'s language)

Source

Landing page: https://nysba.org/opinion-748/

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