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Ethically Speaking: Conflicts of interest between prosecutors, defense counsel

Interesting ethical issues often arise in the context of criminal cases — especially where prosecutors hold part-time positions and are permitted to practice law or otherwise conduct business when not fulfilling their duties as a prosecuting attorney. This is because as the number of business relationships formed by a prosecutor increases, so too does the likelihood that those relationships may lead to a conflict of interest when performing prosecutorial duties.

This very issue was recently addressed by the New York Bar Association’s Committee on Professional Ethics in Opinion 925 (June 29). At issue was whether “a business relationship between a lawyer’s partner and a part-time assistant district attorney (could) prevent the lawyer from representing a defendant on criminal charges brought by another prosecutor in the office of the part-time district attorney?”
In this case, defense counsel joined a firm as a partner. The two other partners at the firm worked from an office located in a different county than the inquiring attorney. Prior to joining the firm, the inquiring attorney began representation of a client in a criminal case in a third county and continued the representation after joining the firm.

The inquiring attorney subsequently learned that one of his new partners and the part-time assistant district attorney in the county where his clients charges were pending had a pre-existing business partnership relating to a real estate and restaurant business venture. The ADA in question was not the ADA prosecuting his client’s case, did not practice criminal defense, had a private office for his law practice in the same county and town as the partner, did not share an office with the partner, and never discussed criminal matters with the partner.

The client was fully informed of the potential conflict and consented to the inquiring attorney’s continued representation, but the prosecuting attorney objected. The committee was then tasked with determining whether there was a conflict of interest under the circumstances presented.
Noting that the issue presented implicated Rule 1.7(a)(2), which addressed an attorney’s “personal” conflicts of interest, the committee set out to determine whether a reasonable attorney would conclude that there was a significant risk that the lawyer’s professional judgment on behalf of a client would be adversely affected by the lawyer’s financial, business, property or other personal interests.
After analyzing the applicable rules and relevant precedent, the committee concluded that, limited to the specific factual scenario presented, the “lawyer may continue a criminal defense representation of a client after joining a firm that includes a partner who has a business relationship with a part-time assistant district attorney working in the same office where another part-time assistant district attorney is prosecuting the lawyer’s client.”
However, the committee explained that even just a slight deviation from the facts presented could result in a different conclusion: “(I)t would alter our opinion if the court here were to be supplied additional facts that showed that, due to the business relationship with the ADA, there is a significant risk that the partner will not ‘give a client detached advice;’ that the relationship will ‘materially limit the lawyer’s representation of the client’ or ‘affect representation, for example, by referring clients to an enterprise in which the lawyer has an undisclosed financial interest;’ ‘that client confidences will be revealed;’ or that the lawyer’s relationship will ‘interfere with both loyalty and professional judgment.’”
Thus, the key inquiry is whether there is even a small chance that the the potential conflict of interest could affect the attorney’s judgment and representation of the client. After all, zealous and competent representation is grounded in unbiased and detached advice. In other words, the best interests of the client always come first.
The Hon. John E. Bernacki is a Pittsford Town Court Justice. His law firm, John E. Bernacki Jr. PC, is located in Pittsford. He can be reached at www.johnbernackilaw.com.

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