Can a lawyer who shares office space with a trial commissioner defend criminal cases in other courts in the same county?

Plain-English summary

The committee answered a lawyer who merely shared office space with a Quarterly Court trial commissioner and wanted to defend criminal cases in other courts in the same county. Drawing on its answer to Question 5 in Opinion KBA E-61 (1972), the committee gave a qualified yes.

The committee set out exceptions. The lawyer could not accept employment in any case that might be or had been tried on the merits before the office-sharing commissioner, nor in any case in which the commissioner might conduct an examining trial, even if the defendant intended to waive that trial. Because the lawyer should not be put in the position of having to decide whether to question the legality of an act of the office-sharer (Canons 5 and 7), he should not accept any case in which the legality of such an act might foreseeably be an issue, and if that issue surfaced after he took the case, he had to withdraw. Outside those exceptions, the lawyer could take any criminal case.

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 Treat this page as historical context, not current guidance.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: Could a lawyer sharing offices with a trial commissioner defend criminal cases at all?

A: Yes, with limits. The committee gave a qualified yes, allowing criminal cases in other courts in the county outside the specified exceptions.

Q: Which cases were off-limits?

A: Cases that might be or had been tried on the merits before the commissioner, cases in which the commissioner might conduct an examining trial, and any case in which the legality of the commissioner's acts might foreseeably be at issue.

Q: What if the conflict appeared after the lawyer took the case?

A: The committee said that if an issue over the legality of the commissioner's acts became apparent after the lawyer accepted employment, he had to withdraw.

Background and rules framework

The opinion drew on Canons 5 and 7 of the former Code (independent professional judgment and zealous representation) and on the committee's earlier Opinion KBA E-61 (1972). The modern analogs are Model Rule 1.7 (concurrent conflicts of interest) and Model Rule 1.12 (lawyers associated with a former judge, arbitrator, mediator, or other adjudicative officer).

Citations and references

Rules of Professional Conduct:

• Canon 5 (independent professional judgment); Canon 7 (zealous representation); modern analogs Model Rules 1.7 and 1.12

Other opinions cited:

• KBA Opinion E-61 (1972) (Question 5, controlling reference)

See also

• KBA Ethics Op. E-167: Office-Sharing With Assistant County Attorney
• KBA Ethics Op. E-174: Legislator Sharing Offices With Special Fund Counsel

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-143.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-143
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 lawyer, who merely shares office space with a Quarterly Court trial commissioner, defend criminal cases in courts (other than the division of Quarterly Court in which the office-sharer sits) in the same county in which the office-sharer sits?

Answer:

Qualified yes.

References:

Opinion KBA E-61 (1972); Canon 5, 7

OPINION

Basically this question is answered by the answer to Question 5 in Opinion KBA E-61 (1972).

The lawyer may not accept employment in any case which may be or has been tried on the merits before the office-sharing trial commissioner. He may not accept employment in any case in which the office-sharer may conduct an examining trial, even though the defendant intends to waive examining trial. Because he should not be in a position of having to decide whether or not to question the legality of an act of the office-sharer (Canons 5, 7), he should not accept employment in any case in which the legality of any such act may foreseeably be an issue. If such an issue becomes apparent after he accepts employment, he must withdraw.

With these exceptions, the lawyer may accept employment in any criminal case.

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.