Can a former assistant prosecutor be paid by a victim's family to keep prosecuting a case he handled in office?

Plain-English summary

The committee considered whether an assistant Commonwealth's Attorney who investigated, prepared, and conducted pretrial proceedings in a criminal case could, after leaving office, accept a fee from the victim's family to continue the prosecution. It answered with a qualified yes.

The committee first addressed 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. It concluded that rule did not apply, because only the Commonwealth may prosecute, so the former assistant who continues the prosecution does so as an ad hoc public officer responsible to the Commonwealth's Attorney; his client is the Commonwealth, not the victim's family. The committee treated the work as a continuation of his public employment rather than new private employment. Because the lawyer would be compensated by someone other than his client, the committee applied EC 5-21, 5-22, and 5-23 and DR 5-107(B): the lawyer had to disclose the family's compensation to the Commonwealth's Attorney, submit fully to that office's supervision and control, make clear to the family that he represented the Commonwealth and not them, and refuse to let the family direct his professional judgment. The committee also observed, though not asked, that the Commonwealth's Attorney remained completely responsible for the decision to continue the prosecution and for the former assistant's compliance with DR 5-107(B).

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 Treat this page as historical context, not current guidance.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: Does the former-public-employee conflict rule bar this arrangement?

A: No. The committee found DR 9-101(B) inapplicable because continuing the prosecution was a continuation of public employment; the former assistant acts as an ad hoc public officer whose client is the Commonwealth.

Q: Who is the lawyer's client when the victim's family pays him?

A: The Commonwealth. The committee said the lawyer must make clear to the family that he represents the Commonwealth, not them, and that their interests are not necessarily identical.

Q: What conditions did the committee attach to accepting the family's money?

A: Under DR 5-107(B), full disclosure to the Commonwealth's Attorney, complete submission to that office's supervision and control, and no acceptance of direction over professional judgment from the paying family.

Background and rules framework

The opinion applied the former Code's provisions on former government lawyers (DR 9-101(B)) and on compensation from a third party (EC 5-21 through 5-23 and DR 5-107(B)). The modern analogs are Model Rule 1.11 (former and current government officers and employees) and Model Rule 5.4(c) (a third party paying for a lawyer's services may not direct or regulate the lawyer's professional judgment).

Citations and references

Rules of Professional Conduct:

• DR 9-101(B) (former public employee); DR 5-107(A) and (B) (compensation from one other than client); EC 5-21, 5-22, 5-23; modern analogs Model Rule 1.11 and Model Rule 5.4(c)

See also

• KBA Ethics Op. E-171: Attorney General in Related Civil and Criminal Cases
• KBA Ethics Op. E-421: Prosecutor in Condemnation
• KBA Ethics Op. E-200: Government Lawyer Outside Work

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-157.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-157
Issued: November 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:

An assistant Commonwealth’s Attorney investigates and prepares a criminal case for trial, and conducts pretrial proceedings therein. After he has left office, may he accept a fee from the victim’s family to continue the prosecution?

Answer:

Qualified yes.

References:

EC 5-21, 5-22, 5-23; DR 5-107(A)(B), 9-101 (B)

OPINION
DR 9-lOl(B) provides that a “lawyer shall not accept private employment in a matter in which he had substantial responsibility while he was a public employee”
Only the Commonwealth may prosecute the defendant in this case. If the former assistant Commonwealth’s Attorney continues the prosecution, he does so as an ad hoc public officer responsible to the Commonwealth’s Attorney. His client is the Commonwealth, not the victim’s family. We view the matter as a continuation of his public employment and therefore do not believe DR 9-lOl(B) applies.
This is a case where a lawyer is being compensated by persons other than his client. EC 5-21, 5-22, and 5-23 warn against such situations. The lawyer must make full disclosure to the Commonwealth’s Attorney of the facts concerning his acceptance of compensation from the victim’s family, DR 5-107(B). He must subject himself in every respect to the supervision and control of the Commonwealth’s Attorney. He must make clear to the family that he represents the Commonwealth, not the family; and in this respect he must bear in mind that the respective interests of Commonwealth and family are not necessarily identical. He may not permit the family to direct his professional judgment in conducting the prosecution, DR 5-107(B).
The practice of permitting private practitioners, privately compensated, to conduct criminal prosecutions, is subject to obvious abuses. Although our opinion on the point has not been requested, we believe it appropriate to note that the Commonwealth’s Attorney has some duties in this situation. He is completely responsible for the decision to continue the prosecution, for the conduct of it, and for the former assistant’s compliance with DR5-107(B).

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.