Can a county attorney share an office with a city police court judge?

Plain-English summary

The committee considered whether a county attorney could share an office with the judge of a city police court in the county. The answer was no.

Starting from In re Kenton County Bar Assn, which held that a city police judge may not defend a criminal case in any court in the county where he sits, and Opinion KBA E-61, which extended that principle to bar lawyers sharing office space with a police judge from defending criminal cases that originated before him, the committee reasoned that the same principle would bar an office-sharer from prosecuting cases that originated before the police judge.

The committee then connected this to the county attorney's statutory duties. Under KRS 69.210(3), the county attorney must aid the Commonwealth Attorney in all circuit court prosecutions and perform the Commonwealth Attorney's duties in that court during his absence, and many or most circuit court prosecutions originate as examining trials in a city police court. A county attorney sharing offices with a city police judge would therefore have to abdicate his KRS 69.210(3) duty frequently, which the committee held he could not properly do (EC 5-17, 8-8; ABA Formal Opinion 135).

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 Treat this page as historical context, not current guidance.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: Could a county attorney share office space with a city police judge?

A: No. The committee held the arrangement improper because the county attorney would frequently have to abdicate his prosecution duties in cases that originated before the police judge.

Q: Why did the prosecution duty matter?

A: Under KRS 69.210(3) the county attorney must aid in circuit court prosecutions, and many of those originate as examining trials in city police court, so sharing the judge's office would force frequent disqualification.

Background and rules framework

The opinion applied the office-sharing principle from In re Kenton County Bar Assn and Opinion KBA E-61 (lawyers sharing space with a judge cannot handle cases originating before him), combined with the county attorney's statutory prosecution duties (KRS 69.210(3)) and DR 8-101's restrictions on lawyers holding public office. The modern analogs are Model Rule 1.7 (concurrent conflicts of interest) and Model Rule 1.12 (lawyers associated with a judge or other adjudicative officer).

Citations and references

Rules of Professional Conduct:

• DR 8-101 (lawyer holding public office); EC 5-17, 8-8; modern analogs Model Rules 1.7 and 1.12

Statutes:

• KRS 69.210(3) (county attorney's duty to aid in circuit court prosecutions)

Cases:

• In re Kenton County Bar Assn, 314 Ky. 664, 236 S.W.2d 906 (1951), police judge may not defend criminal cases in his county

Other opinions cited:

• KBA Opinion E-61 (1972); ABA Formal Opinion 135 (1935)

See also

• KBA Ethics Op. E-143: Office-Sharing With a Commissioner
• KBA Ethics Op. E-167: Office-Sharing With Assistant County Attorney

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-128.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-128
Issued: November 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:

May a county attorney share an office with the judge of the police court of a city in the county?

Answer:

No.

References:

KRS 69.210(3); In re Kenton County Bar Assn, 314 Ky. 664, 236 S.W.2d 906 (1951); Opinion KBA E-61 (1972); EC 5-17, 8-8; ABA Formal Opinion 135 (1935)

OPINION

A city police judge may not defend a criminal case in any court in the county in which he sits, In re Kenton County Bar Assn, 314 Ky. 664, 236 S.W.2d 906 (Ky 1951). In Opinion KBA E-61 (1972), we extended this principle to prohibit lawyers who share office space with a police judge from defending criminal cases which originated before the police judge. Obviously, the same principle would prohibit a lawyer who shares office space with a police judge from prosecuting criminal cases which originated before the police judge.

KRS 69.210(3) requires the county attorney to aid the Commonwealth Attorney in all prosecutions in the circuit court of his county and to perform the duties of the Commonwealth Attorney in that court during the latter's absence. Many, and in some counties, most of the prosecutions in circuit court originate as examining trials in a city police court. If a county attorney shared offices with a city police judge, he would have to abdicate his duty under KRS 69.210(3) frequently. This he cannot properly do, Code of Professional Responsibility, EC 5-17, 8-8; ABA Formal Opinion 135 (1935).

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.