Can an assistant county attorney or his law partners defend criminal cases in the county where he serves?

Plain-English summary

The committee considered a county of fewer than 150,000 people with a fourth-class city, where an assistant county attorney might be appointed under KRS 69.275 (acting only in the county attorney's absence, paid on a services-rendered basis) or KRS 69.276 (acting at the county attorney's direction, salaried). It asked whether such an assistant, and his law partners, could defend criminal cases in the county's courts. It answered no to both.

The committee reasoned that the county attorney's duty is to prosecute criminal cases in the quarterly and county courts, and that he functions in effect as a deputy Commonwealth's attorney. Neither the county attorney nor an assistant appointed under KRS 69.276 could defend criminal cases in those courts, under DR 5-105(A). The committee treated an assistant appointed under KRS 69.275 the same way: accepting the appointment is like accepting a retainer, obligating the appointee to serve the county and Commonwealth when needed, which under DR 5-105(A) requires him to decline private employment he knows must be adverse to the county or Commonwealth. Because the assistant could not defend such cases, neither could his partners, under DR 5-105(D). The committee added that nothing in Sections 109 to 124 of the Kentucky Constitution required substantial change to the statutes defining the county attorney's duties, so absent legislative change its answers would apply to district-court defense after December 31, 1977.

Currency note

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. Subsequent rule amendments or later opinions may have changed the analysis, and the opinion itself noted that pending court-reorganization and legislative changes could affect its answers. Treat this page as historical context, not current guidance.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: Can an assistant county attorney defend criminal cases in his own county?

A: No. The committee concluded that under DR 5-105(A) the assistant must decline private employment adverse to the county or Commonwealth, which includes defending criminal cases in the county's courts.

Q: Did it matter which statute the assistant was appointed under?

A: No. The committee said it made no difference whether the assistant was appointed under KRS 69.275 or 69.276; either appointment obligated him to serve the county and Commonwealth when needed.

Q: Are the assistant's law partners also barred?

A: Yes. Because the assistant was disqualified, his partners were disqualified as well under DR 5-105(D).

Citations and references

Rules of Professional Conduct:

• DR 5-105(A) (declining adverse employment) and DR 5-105(D) (imputation to partners); modern analogs Model Rule 1.10 (imputation) and Model Rule 1.11 (government lawyers)

Statutes:

• Ky. Const. §§ 109 to 124; KRS 69.210, 69.275, 69.276; KRS 62.210(3)

See also

• KBA Ethics Op. E-159: Sharing Offices With County Attorney
• KBA Ethics Op. E-193: Prosecutor Assistants Defending
• KBA Ethics Op. E-421: Prosecutor in Condemnation

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-160.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-160
Issued: January 1977

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 1:

May an assistant county attorney defend criminal cases in the quarterly, county, circuit, and (after December 31, 1977) district courts of the county in which he is appointed to serve?

Answer 1:

No.

Question 2:

May his law partners defend criminal cases in the quarterly, county, and (after December 31, 1977) district courts of the county in which he is appointed to serve?

Answer 2:

No.

References:

Ky Const § 109 to 124; KRS 69.210, 69.275, 69.276; DR 5-105(A)(D)

OPINION

The particular county involved contains less than 150,000 population and no second-class city, but does contain a fourth-class city. Thus an assistant county attorney might be appointed pursuant to KRS 69.275 or 69.276. Under KRS 69.275, he acts only in the absence of the county attorney or when the county attorney is unable to perform his duties. Under KRS 69.276, he acts whenever the county attorney tells him to act.
It is the county attorney’s duty to prosecute all criminal cases in the quarterly and county courts, KRS 69.210(2). Under KRS 62.210(3), he is, in effect, a deputy Commonwealth’s attorney. Obviously neither a county attorney nor an assistant appointed pursuant to KRS 69.276 may defend criminal cases in the quarterly, county, or circuit courts of the county in which they are elected or appointed to act, DR 5-105(A).
The applicant states that the assistant will “handle the legal affairs of the county when the county attorney is out of town or otherwise unable to handle his duties.” We assume that he will be appointed pursuant to KRS 69.275 rather than KRS 69.276. We do not believe this makes any difference. Although an assistant appointed pursuant to KRS 69.275 is paid on a services-rendered basis rather than a salary (as under KRS 69.276), we nonetheless feel that acceptance of such an appointment is similar to acceptance of a retainer in that the appointee obligates himself to perform services for the county and the Commonwealth when and as needed. This requires the appointee to decline private employment which he knows must necessarily be adverse to the county or the Commonwealth, DR 5-105(A).
Because the assistant county attorney may not defend criminal cases in quarterly, county, and circuit courts in his own county, neither may his partners, DR 5-105(D).
The applicant asks if the “new Court system” will change our answers to the questions put. There is nothing in Sections 109 to 124 of the Kentucky Constitution which requires any substantial change in the statutes defining the duties of the county attorney and his assistants. Of course, we cannot guess whether the 1976 Special Session of the General Assembly will or will not substantially change the duties of the county attorney and his assistants. If they do not, our answers will apply to defense of criminal cases in district courts after December 31, 1977.

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.