If a lawyer shares offices with a part-time assistant county attorney, can his office-mate take criminal or bastardy cases in that county?

Plain-English summary

The committee considered Lawyers A and B who shared offices, where A was a part-time assistant county attorney prosecuting criminal and bastardy cases in Quarterly Court. It addressed three questions: whether B could defend a criminal case A did not prosecute (no), whether B could represent parties in bastardy actions A was not involved in (no), and whether B could continue representing a plaintiff in a bastardy case pending before A became an assistant county attorney (qualified yes).

The committee applied its earlier Opinion E-159 (1977), which held that a lawyer sharing offices with the county attorney may not accept employment adverse to the county and may not defend criminal cases where the county attorney prosecutes, because office-sharing lawyers representing adverse interests present the appearance of impropriety condemned by Canon 9. The same principle answered Question 1. For bastardy cases, the committee observed that the county attorney or his assistant is not adverse to either private party, but the interests of the county and Commonwealth differ from the private parties', so B could not accept employment in a matter in which the county would be involved and his client's interest would clearly differ from the county's. For the pending case, the committee weighed that B's client was entitled to counsel of her choice and that B's withdrawal would delay the action and add expense; because the bar rested on appearance rather than actual impropriety, it allowed an exception for the pending case, provided Lawyer A did not handle it for the county.

Currency note

The Kentucky Bar Association's published header for this opinion states it was "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 It is no longer current guidance.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 Treat this page as historical context, not current guidance.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 opinion before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Could the office-mate defend a criminal case the assistant prosecutor did not handle?

A: No. The committee applied E-159 and concluded the office-sharing relationship barred it under Canon 9's appearance-of-impropriety standard.

Q: What about bastardy cases the assistant was not involved in?

A: No, where the county's interest would clearly differ from the client's. The committee reasoned that the county and Commonwealth have interests in such cases distinct from the private parties'.

Q: Could a case already pending before the assistant took office continue?

A: Qualified yes. Because the bar rested on appearance rather than actual impropriety, and the client was entitled to her chosen counsel, the committee allowed it provided the assistant did not handle the matter for the county.

Q: Is this opinion still current?

A: No. The KBA's header records that E-167 was 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); modern analog Model Rule 1.10 (imputation of conflicts)

Other opinions cited:

• KBA Opinion E-159 (1977)

See also

• KBA Ethics Op. E-159: Sharing Offices With County Attorney
• KBA Ethics Op. E-242: Codefendants and One Office
• KBA Ethics Op. E-243: Sharing Offices With County Attorney

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-167.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-167
Issued: May 1977
Overruled by E-444 (2018)

Question 1:

Lawyers A and B share offices. Lawyer A is a part-time assistant county attorney who prosecutes criminal and bastardy cases in the Quarterly Court. May B defend a criminal case in Quarterly Court if A does not prosecute it?

Answer 1:

No.

Question 2:

May B represent parties in bastardy actions in Quarterly Court if A is not involved?

Answer 2:

No.

Question 3:

May B continue to represent the plaintiff in a bastardy case in Quarterly Court which was pending before A became an assistant county attorney?

Answer 3:

Qualified yes.

References:

Code of Professional Responsibility, Canon 9; Opinion KBA E-159 (1977)

OPINION

In Opinion KBA E-159 (1977), we decided that a lawyer who shares offices with the county attorney may not accept employment adverse to the county and specifically that he could not defend criminal cases in the same county in which the county attorney was elected. The same principle applies in answer to Question 1.
In Opinion KBA E-159 (1977) we decided that office sharing lawyers should not represent “adverse” interests because it presents the appearance of professional impropriety denounced by Canon 9. In a bastardy proceeding, the county attorney or his assistant handling the matter is not in a position adverse to either of the private parties, but the interests of the county and Commonwealth in such cases clearly differ from those of the private parties. On the same reasoning set out in Opinion KBA E-159, we believe that a lawyer who shares offices with the county attorney or an assistant county attorney may not accept employment in a matter in which the county will be involved and in which his client’s interest would clearly differ from that of the county.
In answer to Question 3, we must consider the additional fact that B’s client is entitled to counsel of her choice and B’s withdrawal would undoubtedly delay the action and put the client to additional expense. Considering these facts and that fact that our answer to Question 2 is based on appearance of impropriety and not actual impropriety, we believe an exception may be made for this pending case, provided Lawyer A does not handle it for the 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.