ETH 1219
Ethics Opinion 1219
New York Ethics Opinion
New York State Bar Association Committee On Professional Ethics
March 17, 2021
Topic:
Par t-time county attorney, parole violation hearings,
conflicts.
Digest:
A part-time assistant County Attorney whose office does not
handle criminal prosecutions can generally represent
defendants in State parole violation hearings. A conflict may
arise in particular cases, such as where the defendant is
adverse to the County Attorney’s office in other
proceedings or where County employees are involved in the
parole violation, and those conflicts may sometimes be
unwaivable.
Rules:
1.0(h), 1.7, 1.10(a).
FACTS
1. The
inquirer is a part-time assistant County Attorney. The County
Attorney is the legal advisor to the County Executive and
other officers and employees acting in their official
capacity and pursues and defends civil actions by and against
the County. The County Attorney’s Office does not
prosecute criminal actions. The inquirer himself, among other
things, advises the sheriff, County probation office and
County Executive on administrative matters, represents the
County in civil cases, and handles employment related
hearings.
2.
There are attorneys who report to the County Attorney who
handle juvenile justice and Social Services matters, but the
inquirer does not engage in that practice. Those attorneys
work in a different building from the inquirer and do not
save files to shared drives. The inquirer does not have
access to those offices or files.
3. The
County Attorney wishes to engage the inquirer as an
independent contractor to provide assigned County-paid
representation to defendants in State parole violation
hearings and appeals from those hearings. The parole
violation hearings and appeals are held before State
administrative tribunals that are part of the State
Department of Corrections and Community Supervision, not
County judges or officials, and the County generally has no
role in those hearings (beyond paying for assigned counsel).
While it is conceivable that a violation of a County
ordinance could lead to a parole violation, County laws are
generally not at issue in those proceedings. The County
probation office that the inquirer sometimes advises deals
with probation and not parole for State law offenses that
would be at issue in the parole violation hearings in which
the inquirer would be acting.
QUESTION
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