Can a county attorney's law partner defend criminal cases in other counties, and can the county attorney defend criminal cases in an adjoining state?

Plain-English summary

The committee answered two questions from a county attorney contemplating a partnership. The first asked whether his prospective partner could represent defendants in criminal cases in other counties; the second asked whether the county attorney himself could represent defendants in criminal cases in an adjoining state, from which he drew a substantial part of his private practice. The committee answered no to both.

On the first question, the committee traced its prior decisions: Opinion KBA E-31 held it unethical for a county attorney or other prosecuting official to represent defendants in criminal cases in courts other than those where he regularly prosecuted, and Opinion KBA E-61 extended that rule to first-class-city prosecutors and to partners and other members of the prosecutor's firm, both resting on former Canon 6 (now DR 5-105) against representing conflicting interests. Opinion KBA E-81 recognized a limited exception for small rural communities, allowing a fourth-class-or-lower city prosecutor to defend a criminal case not arising in his own lower court, based on the shortage of attorneys. The committee found that exception inapplicable here, because the proposed representation would occur in other counties (not the county where the county attorney holds office), so community size and attorney availability were immaterial; the rule of E-31 and E-61 therefore applied, and the partner could not defend criminal cases in other counties.

On the second question, the committee followed ABA Formal Opinion 30 (1931), which concluded that a prosecuting attorney should promptly withdraw from defending a person indicted in an adjoining state, viewing such representation as a violation of former Canon 6 and as conduct calculated to interfere with the administration of justice. The committee agreed: as prosecutor, the county attorney would have occasion to call on public officials of the adjoining state for assistance and courtesies, and his appearance as defense counsel there could result in withdrawal of that cooperation, harming the administration of justice. It concluded that his appearance as criminal defense counsel in the adjoining state would be improper.

Currency note

This opinion was issued in 1974 under Kentucky's former Code of Professional Responsibility (in effect 1971 to 1990), before the Kentucky Bar Association's 1990 adoption of the Rules of Professional Conduct (SCR 3.130) and the substantial 2009 revisions to those rules. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a county attorney's law partner defend criminal cases in other counties?

A: No. The committee held that the rule of Opinions KBA E-31 and E-61, barring a prosecutor and his firm from defending criminal cases, applies, because the small-community exception of Opinion KBA E-81 did not fit a representation occurring in other counties.

Q: Can the county attorney defend criminal cases in an adjoining state?

A: No. The committee followed ABA Formal Opinion 30 (1931), reasoning that the prosecutor relies on the adjoining state's officials for cooperation and that defending there could prompt withdrawal of that cooperation, harming the administration of justice.

Q: Does the small-community exception ever apply?

A: The committee noted that Opinion KBA E-81 allows a fourth-class-or-lower city prosecutor to defend a criminal case not arising in his own lower court, because of the shortage of attorneys, but found that rationale absent on these facts.

Background and rules framework

The opinion applied DR 5-105 of the former Code of Professional Responsibility (the successor to former Canon 6, barring representation of conflicting interests), together with the firm-imputation principle of Opinion KBA E-61 and ABA Formal Opinion 30 (1931). The modern analogs are Model Rule 1.7 (concurrent conflicts of interest) and Model Rule 1.10 (imputation of conflicts within a firm); the conflicts of a current government lawyer are also addressed by Model Rule 1.11.

Citations and references

Rules of Professional Conduct:

• DR 5-105 (refusing to represent conflicting interests, successor to former Canon 6); modern analogs Model Rules 1.7 and 1.10

Other opinions cited:

• KBA Opinions E-31, E-61, and E-81; ABA Formal Opinion 30 (1931), prosecutor should withdraw from defending a person indicted in an adjoining state

See also

• KBA Ethics Op. E-129: County and City Attorney
• KBA Ethics Op. E-97: Juvenile Trial Commissioner, Partner of the Prosecutor
• KBA Ethics Op. E-128: County Attorney, Police Judge Office

Source

• Landing page: https://kybar.org/For-Members/Rules-Ethics-Information/Ethics-Opinions
• Original PDF: https://kybar.org/Portals/0/Admin/Ethics%20Opinions/KBA_E-102.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-102
Issued: November 1974

This opinion was decided under the Code of Professional Responsibility, which was in effect from 1971 to 1990. Lawyers should consult the current version of the Rules of Professional Conduct and Comments, SCR 3.130 (available at http://www.kybar.org), before relying on this opinion.

Question 1:

May the partner of a county attorney ethically represent defendants in criminal cases in other counties?

Answer 1:

No.

Question 2:

May a county attorney represent defendants in criminal cases in another state?

Answer 2:

No.

References:

DR 5-105

OPINION

A county attorney contemplates formation of a partnership with another attorney. Before doing so he wishes to determine whether it would be permissible for the other attorney to undertake representation of defendants in criminal cases in other counties and has sought the advice of our Committee. He further advises that the county in which he practices adjoins another state, from which he derives a substantial part of his private practice. In the past he has declined to represent defendants in criminal cases in the other state because of his position but would like to accept such employment if it is not unethical. He again requests our opinion.

In Opinion KBA E-31, we considered the right of a county attorney or other official charged with the prosecution of criminal offenses to represent defendants in criminal cases in courts other than those in which he regularly practiced as prosecutor, holding that such representation was unethical. Later, in Opinion KBA E-61 we applied the same rule to prosecuting attorneys in cities of the first class, noting that this limitation also applied to partners or other members of the attorney's firm. The basis for both decisions was the prohibition in former Canon 6 (now DR 5-105) against representing conflicting interests. In Opinion KBA E-81 we observed a limitation on this rule where small rural communities are involved. There, we concluded that a city prosecutor in cities of the fourth class and lower might undertake the defense of a criminal defendent if the matter did not arise in the lower court for which he is prosecutor. The rationale of this decision was the shortage of attorneys in such communities and the possibility that defendants might not other wise receive representation.

The facts of this inquiry do not present the same considerations which led to our conclusion in Opinion KBA E-81. The proposed representation would occur in other counties and not the county in which the county attorney holds office. The size of his community and availability of attorneys is thus immaterial. In the absence of this element, the rule announced in Opinions KBA E-31 and E-61 unquestionably applies, and the partner of a county attorney may not ethically represent defendants in criminal cases in other counties.

The second question was considered by the ABA Committee in Formal Opinion 30 (dated March, 1931), where the Committee concluded that upon his election or appointment to office a prosecuting attorney should promptly withdraw from the defense of a person indicted in an adjoining state. Such representation was viewed as a violation of former Canon 6 and as conduct calculated to interfere with the administration of justice. The Committee agrees with this conclusion. As prosecutor, the county attorney in question undoubtedly has occasion to call upon public officials of the state adjoining his county for assistance and courtesies. His appearance as defense counsel in that state could and very possibly would result in withdrawal of such cooperation. In that event the administration of justice would suffer. It was precisely this possibility that Opinion 20 was intended to guard against. We have accordingly concluded that appearance by the county attorney as criminal defense counsel in the adjoining state would be improper.

Note to Reader

This ethics opinion has been formally adopted by the Board of Governors of the Kentucky Bar Association under the provisions of Kentucky Supreme Court Rule 3.530 (or its predecessor rule). The Rule provides that formal opinions are advisory only.