Can an assistant county attorney who prosecutes in Quarterly Court also be a deputy sheriff or constable so he can make arrests himself?

Plain-English summary

The committee considered whether an assistant county attorney, who prosecutes in Quarterly Court, could be appointed a deputy sheriff or deputy constable without salary so that he could make arrests for actions occurring in his court rather than taking out warrants. It answered no.

The committee acknowledged that no specific section of the Code of Professional Responsibility decided the question, and that there appeared to be no statutory or constitutional prohibition against the dual role. It rested its answer on Canon 9, which requires lawyers to avoid even the appearance of professional impropriety and to inspire the confidence, respect, and trust of the public. It reasoned that potential and actual witnesses should not face the threat or possible intimidation that their testimony or conduct in court could cause the prosecutor himself to arrest them on the spot, and that other members of the public should not be subject to arrest and then prosecution by the same person.

The committee added that the Legislature had separated the offices of county prosecutor and county peace officers purposefully, that each office has its own duties, and that attempting to perform both might cause neglect of one or both. Because of the possible abuses and the appearance to the public, it concluded the prosecutor-peace-officer function should not be condoned.

Currency note

This opinion was issued in 1975 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 Treat this page as historical context, not current guidance.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 an assistant county attorney also serve as a deputy sheriff to make arrests?

A: No. The committee held that combining prosecutorial duties with peace-officer arrest powers creates an appearance of impropriety under Canon 9 and should not be condoned.

Q: Did it matter that the deputy role was unsalaried or not barred by statute?

A: No. The committee found no statutory or constitutional bar and no specific Code section on point, but rested its answer on the ethical appearance concern of Canon 9.

Q: What harms did the committee identify?

A: The committee pointed to the risk of intimidating witnesses (who could be arrested on the spot by the prosecutor) and the public being arrested and then prosecuted by the same person, plus the neglect of duties that performing both offices might cause.

Background and rules framework

The opinion rested on Canon 9 of the former Code of Professional Responsibility (avoiding even the appearance of professional impropriety), the committee having found no specific disciplinary rule, statute, or constitutional provision controlling. The modern analog is Model Rule 1.7 (conflicts of interest, including a personal-interest or role conflict that materially limits the representation).

Citations and references

Rules of Professional Conduct:

• Canon 9 (appearance of impropriety); modern analog Model Rule 1.7

See also

• KBA Ethics Op. E-115: County Attorney's Courthouse Office and Seat at the Bench
• KBA Ethics Op. E-111: Police Officer Also Practicing Law
• 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-113.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-113
Issued: May 1975

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.

Is it ethical for an Assistant County Attorney, who is a prosecutor in Quarterly Court, to be appointed a Deputy Sheriff or Deputy Constable without drawing a salary in order to make arrests for various actions which have occurred in his court rather than going through the procedure of taking out warrants?

Answer:

No.

References:

Canon 9

OPINION

While there is no specific section of the Code of Professional Responsibility which decides this question, such a contemplated dual role of prosecutor and peace officer would, if implemented, place an extraordinary power in the office of Assistant County Attorney that was not intended by the Kentucky General Assembly nor by the framers of our Constitution. Although there does not appear to be a statutory nor a constitutional prohibition against such a dual role, there are ethical considerations which are not based upon hard-set rules, but rather upon the appearances of a lawyer's conduct. Canon 9 requires all lawyers to avoid even the appearance of professional impropriety and to conduct themselves so as to inspire the confidence, respect and trust of the public. Potential and actual witnesses should not be under the threat and possible intimidation that their testimony or conduct in court could cause the prosecutor himself to arrest them on the spot. Nor should other members of the public be subjected to arrest and then prosecution by the same person.

The Legislature has separated the offices of county prosecutor and the county peace officers not without purpose. Both offices have their own duties and functions, and the attempt to perform both may cause the neglect of one, the other, or both.

Because of the possible abuses that could result from such a prosecutor, peace-officer function, and because of its appearance to the public, it is the opinion of the Committee that it should not be condoned.

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.