Could a Kentucky circuit court clerk operate a solo law practice?

Plain-English summary

In 1993, Kentucky's Attorney General concluded that a circuit court clerk was not barred by the state Constitution or statutes from practicing law alone, including in the clerk's own county. The opinion read KRS 61.098 as prohibiting a law partnership or association with another attorney and a shared office with an attorney, rather than prohibiting all legal practice by a clerk.

The AG raised a separate concern about a clerk practicing in the clerk's own county because the clerk controlled circuit court records and worked closely with local judges. The opinion did not decide whether that practice violated an ethics rule; it deferred that issue to the Kentucky Bar Association and the Kentucky Supreme Court.

Currency note

This opinion was issued in 1993. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical summary

Circuit court clerks

The AG said KRS 61.098 permitted a solo practice but forbade maintaining a law partnership or association with another attorney. The statute also prohibited a circuit clerk from keeping the clerk's office with an attorney's office.

Lawyers reviewing professional conduct

The opinion questioned the propriety of practice in the clerk's own county, given the clerk's custody of court files and working relationship with local judges. It expressly deferred whether any ethical rule or Supreme Court Rule was violated.

Common questions

Did Kentucky law in 1993 ban circuit clerks from practicing law?

The AG concluded that the state Constitution and statutes did not impose a blanket ban on circuit court clerks practicing law.

Could a circuit clerk join another lawyer's firm?

No under the statute as the AG read it. KRS 61.098 prohibited a law partnership or association with another attorney and also barred the shared-office arrangement described in the opinion.

Did the opinion clear a clerk to practice in the clerk's own court?

The AG said the statute did not prevent solo practice in the clerk's county, but questioned its propriety. The opinion left any ethics or Supreme Court Rule violation for the bar association and Supreme Court to decide.

Background and statutory framework

Richard Underwood, chair of the Kentucky Bar Association Ethics Committee, asked about a Clay County circuit court clerk reportedly practicing in Clay Circuit Court. The AG applied the ordinary-meaning rule in KRS 446.080(4) to KRS 61.098. It contrasted that statute with explicit practice bans on judges, the Attorney General, and Administrative Office of the Courts employees.

Citations and references

• KRS 61.098: law partnership, association, and shared-office restrictions for clerks.
• KRS 446.080(4): ordinary-meaning rule used in the opinion.
• KRS 15.015: Attorney General private-practice restriction used as a comparison.
• KRS 27A.050: Administrative Office of the Courts employee restriction used as a comparison.
• Green v. Moore, Ky., 135 S.W.2d 682 (1939): ordinary-meaning authority cited by the AG.

Source

• Landing page: https://www.ag.ky.gov/Resources/Opinions/Opinions/OAG93-047.htm

Original opinion text

OAG 93-47

June 29, 1993

Hon. Richard Underwood

College of Law

University of Kentucky

Lexington, KY 40506-0048

Dear Professor Underwood:

You have asked our office for an advisory opinion regarding whether Circuit Court clerks are prohibited from practicing law. As Chairman of the KBA Ethics Committee you have received information that the Clay County Circuit Court Clerk is actively practicing law in Clay Circuit Court. You note that KRS 61.098 prohibits a Circuit Clerk from maintaining a law partnership or association with another lawyer and specifically provides:

(1) No county clerk or circuit clerk shall maintain a law partnership or association with an attorney at law.

(2) No circuit clerk, county clerk, justice of the peace, constable, or recorder shall keep his office with that of an attorney at law.

KRS 61.098 forbids a Circuit Clerk from forming a law partnership or association with another attorney but does not prevent a Circuit Clerk from conducting a solo law practice in his own county or in any other county in the Commonwealth. In reaching this conclusion we are guided by the rule of statutory construction that unless there is language in the statute plainly indicating a contrary interpretation, the usual and ordinary meaning of the words will be utilized. KRS 446.080(4). Green v. Moore, Ky., 135 S.W.2d 682 (1939).

KRS 61.098 does not prohibit a Circuit Court Clerk from practicing law but the statute does restrict the clerk from forming a law partnership or association. There are numerous examples of laws clearly prohibiting certain individuals from engaging in the practice of law. In § 123 of the Kentucky Constitution all of the Justices and Judges of the Judicial Department are prohibited from engaging in the practice of law. KRS 15.015 states that the Attorney General shall not engage in the private practice of law. KRS 27A.050 provides that no employees of the Administrative Office of the Courts shall practice law in any court in the Commonwealth.

In summary, neither the Kentucky Constitution nor statutes prohibit the Circuit Court Clerk from practicing law. However, due to the Circuit Court Clerk's custodial responsibility over the files and records of the Circuit Court and the close working relationship between a Circuit Clerk and the local Circuit and District Judges, we also question the propriety of permitting the clerk to practice in his own county. We defer to the KBA and the Supreme Court regarding whether a Circuit Clerk practicing law has violated an ethical rule or Supreme Court Rule.

Sincerely yours,

CHRIS GORMAN

ATTORNEY GENERAL

Lynne Schroering

Assistant Attorney General

(502) 564-7600

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