Can a county attorney represent residents challenging a county contract that predates his taking office?

Plain-English summary

The committee considered a county attorney who wanted to represent county residents disputing the legality of a contract between the county and a private corporation for garbage collection and disposal. The contract was a license to use county-leased land for trash disposal in exchange for payments to the county and the collector's commitment to serve residents for a stated fee. It had been entered before the county attorney assumed office, and he had neither drafted it nor advised the Fiscal Court about it.

The committee first cleared away the rule against a lawyer attacking his own work, finding it inapplicable because the county attorney had no role in making the contract. It then rested its no answer on conflicting loyalties. Collection and disposal of trash was a basic governmental function in which the county had an interest, and the Fiscal Court was entitled to the county attorney's independent professional judgment about how it chose to perform that function. That judgment for the county would be adversely affected if he accepted employment from persons attacking the contract's legality, so DR 5-105(A) barred the engagement.

Currency note

This opinion was issued in 1976 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 Treat this page as historical context, not current guidance.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: Did it matter that the contract was signed before the county attorney took office?

A: The committee said it removed the "attacking your own work" concern, but it did not save the engagement; the conflict with his duty to the county still barred him.

Q: Why couldn't the county attorney represent residents against the contract?

A: Because the Fiscal Court was entitled to his independent judgment about the county's chosen way of providing garbage service, and that judgment would be adversely affected if he represented people attacking the contract, contrary to DR 5-105(A).

Background and rules framework

The opinion applied DR 5-105(A) of the former Code, which required a lawyer to decline employment that would adversely affect the exercise of independent professional judgment on behalf of another client. The modern analogs are Model Rule 1.7 (concurrent conflicts of interest) and Model Rule 1.11 (special conflict rules for current and former government officers and employees).

Citations and references

Rules of Professional Conduct:

• DR 5-105(A) (declining employment that impairs independent judgment); modern analogs Model Rules 1.7 and 1.11

See also

• KBA Ethics Op. E-171: AG Civil-Then-Criminal Conflict
• KBA Ethics Op. E-137: Lawyer-Officer Private Practice

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-141.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-141
Issued: March 1976

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 represent residents of the county in a dispute concerning the legality of a contract for garbage collection and disposal services between the county and a private business corporation, into which the county entered before the county attorney assumed office?

Answer:

No.

References:

DR 5-105(A)

OPINION

The county attorney who puts the question was not in office when the contract was made. He did not participate in drafting it or advise the Fiscal Court concerning it. Therefore the rule against a lawyer attacking his own work is not involved.

The contract is a license to use land held by the county under long-term lease for the purpose of disposing of trash and garbage, in consideration of payments by the collector to the county, and the collector's undertaking to provide collection services to residents of the county for a stated fee paid to the collector.

Collection and disposal of trash and garbage is a basic governmental function in which the county has an interest. The Fiscal Court is entitled to the independent professional judgment of the county attorney concerning the manner in which it chooses and has chosen to perform this function. The county attorney's judgment on behalf of the county in this respect would be adversely affected were he to accept employment by persons attacking the legality of the contract in question. Therefore he may not accept the employment, DR 5-105(A).

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.