Can a lawyer who shares office space with the county attorney take cases against the county or defend criminal cases there?

Plain-English summary

The committee considered a lawyer who shared offices with the county attorney (here, his son): separate private offices, a shared reception and secretarial room, separate stationery, files, accounts, and records, and no partnership or employment relationship. It asked whether that lawyer could accept employment adverse to the county (answer: no) and whether he could defend criminal cases except those in the county attorney's county (answer: qualified no).

The committee rested on Canon 9, that a lawyer should avoid even the appearance of professional impropriety, and on its earlier Opinion E-44 (1971), which held that a lawyer sharing offices with the Commonwealth's attorney should not defend criminal cases in the court where that attorney prosecutes. It reasoned that when office-sharing lawyers represent adverse interests, there is always some temptation to moderate zeal for the sake of office harmony, and that much of the lay public believes such clients receive less than zealous representation. The committee noted that DR 5-105 bars partners and associates from representing adverse interests but contains no explicit provision regulating lawyers who merely share offices; it grounded the restriction in the appearance of impropriety. Applied to the facts, the office-sharing lawyer should not represent parties whose interests are adverse to the county, the fiscal court, or a county official entitled to the county attorney's services, but he may defend criminal cases except those in the county attorney's own county.

Currency note

The Kentucky Bar Association's published header for this opinion states it was "Modified by KBA E-243" and "Overruled by E-444 (2018)." It is no longer current guidance. This opinion was issued in 1977 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. Treat this page as historical context, not current guidance. Verify against the current rules and the later opinions before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Could a lawyer who shared offices with the county attorney take a case against the county?

A: No. The committee concluded that office-sharing lawyers should not represent adverse interests because it presents an appearance of impropriety under Canon 9.

Q: Could he defend criminal cases?

A: Qualified no. He could defend criminal cases except those in the county attorney's own county.

Q: Is this opinion still good guidance?

A: No. The KBA's header records that E-159 was modified by E-243 and overruled by E-444 (2018); it is retained here as historical research only.

Citations and references

Rules of Professional Conduct:

• Canon 9 (appearance of impropriety); DR 5-105 (representing adverse interests); modern analog Model Rule 1.10 (imputation of conflicts)

Statutes:

• KRS 62.210(3)

Other opinions cited:

• KBA Opinion E-44 (1971)

See also

• KBA Ethics Op. E-243: Sharing Offices With County Attorney
• KBA Ethics Op. E-167: Office-Sharing With an Assistant County Attorney
• KBA Ethics Op. E-242: Codefendants and One Office

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-159.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-159
Issued: January 1977
Modified by KBA E-243
Overruled by E-444 (2018)

Question 1:

May a lawyer who shares offices with the county attorney accept employment adverse to the county?

Answer 1:

No.

Question 2:

May a lawyer who shares offices with the county attorney defend criminal cases except those cases in the attorney’s county?

Answer 2:

Qualified No.

References:

KRS 62.210(3); Canon 9; DR 5-105; Opinion KBA E-44 (1971)

OPINION

The lawyer who shares offices with the county attorney is his son. They occupy the first story of a detached two-story building. Each uses a separate room as his private office and they use a third room in common for their secretaries and as a reception room. The law library is kept in all three rooms. Each lawyer operates separately from the other. Each has his own secretary, his own stationery, his own files, his own office checking account, his own records, etc. There has never been a partnership or employer-employee relationship between them.
Canon 9 states that “[a] lawyer should avoid even the appearance of professional impropriety.” In Opinion KBA E-44 (1971), we decided that a lawyer who shares offices with the Commonwealth’s attorney ought not defend criminal cases in the court in which it is the duty of the Commonwealth’s attorney to prosecute. When lawyers who share offices represent adverse interests, there must always be some temptation to moderate zeal on behalf of the client in the interest of harmony in the office. No doubt such temptation would often, even always, be successfully resisted. However, a large part of the lay public believes that in these circumstances, one or both of the clients will get representation that is less than zealous. It is reasonable that the lay public should believe this because the temptation to moderate zeal in such circumstances is a fact. Accordingly, we believe that office sharing lawyers ought not represent adverse interests because doing so presents an appearance of impropriety.
Under DR 5-105, partners and associates may not represent adverse interests. There is no such explicit provision in the Code of Professional Responsibility prohibiting or regulating representation of adverse interests by lawyers who merely share offices.
In the case at hand, the lawyer who shares offices with the county attorney should not represent parties whose interests are adverse to the County or Fiscal Court or to a county official in a matter in which the official is entitled to the advice and other legal services of the county attorney.
The lawyer who shares offices with the county attorney may defend criminal cases except those cases in the attorney’s county.

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.