Can a lawyer who has a victim's wrongful-death case also help the Commonwealth's attorney prosecute the murder without dropping the civil case?

Plain-English summary

The committee considered a private lawyer who represented the personal representative of a murder victim in a wrongful-death action against the alleged murderer and wanted to assist the Commonwealth's attorney in the related murder trial without withdrawing from the civil case. The committee gave a qualified yes, conditioned on the lawyer merely assisting while the Commonwealth's attorney retained complete control over preparing and trying the murder case.

The committee read DR 9-101(B), which bars a lawyer from accepting private employment in a matter in which he had substantial responsibility as a public employee, and recognized that the rule would also bar continuing private employment in a matter where the lawyer takes on substantial public responsibility. It traced the rule to old ABA Canon 36 and its judicial analogue DR 9-101(A), applied to ad hoc officers like special masters and special prosecutors. But the committee distinguished those precedents in two ways: here the private employment came first, and here another public officer kept control.

The purpose of DR 9-101(B), the committee explained, is to remove the temptation to use public office to build or advantage a private practice. Because the lawyer was already employed in the wrongful-death action, his service as a special prosecutor could not be used to build that practice, and if the Commonwealth's attorney controlled the murder case, the special prosecutor could not influence the civil action through how the murder case was handled. The committee distinguished its Opinion KBA E-64 (1973), where the vice was that the Commonwealth's attorney had an interest in his associate's civil success; here the Commonwealth's attorney had no interest in the wrongful-death outcome.

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 Treat this page as historical context, not current guidance.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 the wrongful-death lawyer help prosecute the murder without dropping the civil case?

A: Yes, with a condition. The committee allowed it where the lawyer merely assists and the Commonwealth's attorney keeps complete control of the prosecution.

Q: Why didn't the public-employee conflict rule bar this?

A: Because the private employment came first and another public officer controlled the prosecution, so the lawyer could not use the public role to build or advantage his private case, which is what DR 9-101(B) guards against.

Q: How was this different from Opinion KBA E-64?

A: In E-64, the Commonwealth's attorney had an interest in his associate's civil success, which could taint the related criminal charges. Here, the committee said, the Commonwealth's attorney had no interest in the wrongful-death outcome.

Background and rules framework

The opinion applied DR 9-101(A) and DR 9-101(B) of the former Code (a lawyer's later private employment in a matter for which he had public responsibility, and the judicial analogue), tracing both to old ABA Canon 36. The modern analogs are Model Rule 1.11 (special conflicts for current and former government officers and employees) and Model Rule 1.7 (concurrent conflicts of interest).

Citations and references

Rules of Professional Conduct:

• DR 9-101(A), DR 9-101(B) (public-employee conflicts); old ABA Canon 36; modern analogs Model Rules 1.11 and 1.7

Cases:

• Allied Realty v. Exchange National Bank, 408 F.2d 1099 (8th Cir. 1969), Canon 36 applied to ad hoc officers
• United States v. Standard Oil, 136 F. Supp. 345 (S.D.N.Y. 1955), purpose of the public-employee bar

Other opinions cited:

• ABA Formal Opinions 49 (1931), 342 (1975); ABA Informal Opinion 1066 (1968); KBA Opinion E-64 (1973)

See also

• KBA Ethics Op. E-146: Former Prosecutor Switching Sides
• KBA Ethics Op. E-171: AG Civil-Then-Criminal Conflict

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-151.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-151
Issued: July 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 in private practice, who represents the personal representative of a murder victim in a wrongful death action against the alleged murderer, assist the Commonwealth's attorney in the murder trial without withdrawing from his employment in the wrongful death action?

Answer:

Qualified yes.

References:

DR 9-101(A)(B); Old Canon 36; Allied Realty v. Exchange National Bank, 408 F.2d 1099 (8th Cir 1969); United States v. Standard Oil, 136 F.Supp. 345 (S.D. New York 1955); ABA Formal Opinion 49 (1931), 342 (1975); ABA Informal Opinion 1066 (1968); Opinion KBA E-64 (1973)

OPINION

If the private practitioner merely assists the Commonwealth's attorney and the latter maintains complete control over the preparation for trial and the trial of the murder case, the private practitioner need not withdraw from the wrongful death action.

DR 9-101(B) states "[a] lawyer shall not accept private employment in a matter in which he had substantial responsibility while he was a public employee." Obviously, DR 9-101(B) would also bar continuation of private employment in a matter in which the lawyer assumes substantial responsibility as a public employee.

Old ABA Canon 36 was the predecessor of DR 9-l01(B) and its judicial analogue, DR 9-101(A). Old Canon 36 was applied to ad hoc officers such as special masters and prosecutors, Allied Realty v. Exchange National Bank, 408 F.2d 1099 (8th Cir 1969); ABA Informal Opinion 1066 (1968); ABA Formal Opinion 49 (1931) It is not our intention to depart from this general rule. However, each of these precedents differs in two respects from the case now put to us. In each of the precedents, private employment was accepted after the public service had been undertaken, and there was no element of control by some other public officer.

If public officers are permitted to accept private employment in matters in which they had responsibility as public officers, they will be tempted to use public office as a means of building, or gaining an advantage in, subsequent private practice. The purpose of DR 9-101(B) is to remove such temptations from reach, United States v. Standard Oil, 136 F.Supp. 345 (S.D. New York 1955); ABA Formal Opinion 342 (1975) (62 Am Bar Assn Jour 517, April 1976). In the case presented, the private practitioner has already been employed in the wrongful death action, and therefore his employment as a special prosecutor can not be used to help build his private practice. If the Commonwealth's attorney controls preparation and trial of the murder case, the special prosecutor will not be in a position to influence the wrongful death action by the manner in which the murder case is handled. Thus the reasons for applying DR 9-101(B) are not present here.

Opinion KBA E-64 (1973) is not contra. There, we decided that an associate of the Commonwealth's attorney might not accept employment in a civil matter related to criminal charges it was the Commonwealth's attorney's duty to prosecute. There, the vice was that the Commonwealth's attorney had an interest in his associate's success in the civil action, and such interest might have affected the way in which he handled the related criminal charges. Here, the Commonwealth's attorney has no interest in the outcome of the wrongful death action.

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.