Can the Attorney General prosecute someone who was a codefendant with the Commonwealth in a related civil case the AG handled?

Plain-English summary

The committee considered whether the Office of the Attorney General could participate in criminal proceedings against individuals who were or had been codefendants with the Commonwealth in civil actions the AG handled, where both the civil and criminal matters sprang from the same incident. It answered no.

The committee first noted that under KRS 15.020 the Attorney General appears for the Commonwealth except where it is the Commonwealth's Attorney's or county attorney's duty, and that under KRS 69.010 the Commonwealth's Attorney has the primary duty to prosecute criminal violations in circuit court. Its central concern was that, by representing the Commonwealth in both the civil and criminal actions, the AG might be seen as lending the Commonwealth's authority to coerce or influence the outcome of separate proceedings with differing purposes. The committee quoted EC 7-21 on the impropriety of using the criminal process to coerce adjustment of private civil claims. Although the AG would act in a public rather than private capacity, the committee concluded the appearance of professional impropriety should be avoided under Canon 9. It qualified its answer: under KRS 15.205 the AG may direct a Commonwealth's Attorney from another district to participate in the criminal proceedings, which would not imply a conflict, provided the need for assistance is clear, the designated attorney acts solely under the direction of the district's Commonwealth's Attorney, and all concerned avoid any conduct suggesting a conflict of interest or unfair advantage to the Commonwealth as a civil defendant.

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. Treat this page as historical context, not current guidance.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 the AG prosecute a criminal case against a former civil codefendant of the Commonwealth?

A: No. The committee concluded the dual role creates an appearance of impropriety under Canon 9 where both matters arise from the same incident.

Q: What was the committee's main concern?

A: That the AG, representing the Commonwealth in both proceedings, might appear to use its authority to coerce or influence the outcome of separate proceedings with differing purposes, contrary to EC 7-21.

Q: Is there any way the prosecution can proceed?

A: Yes. The committee said the AG may, under KRS 15.205, direct a Commonwealth's Attorney from another district to handle the prosecution, provided the need is clear and that attorney acts under the district's Commonwealth's Attorney.

Citations and references

Rules of Professional Conduct:

• Canon 9 (appearance of impropriety); EC 7-21 (criminal process to coerce civil claims); modern analogs Model Rule 1.11 (government lawyers) and Model Rule 1.7 (concurrent conflicts)

Statutes:

• KRS 15.020, KRS 15.205, KRS 69.010

See also

• KBA Ethics Op. E-157: Privately Paid Former Prosecutor
• KBA Ethics Op. E-200: Government Lawyer Outside Work
• 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-171.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-171
Issued: November 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:

May the Office of the Attorney General of Kentucky participate in criminal proceedings against individuals who are or were codefendants with the Commonwealth of Kentucky in civil actions when the Commonwealth was represented by the Office of the Attorney General and both the civil and criminal actions spring from the same incident?

Answer:

No.

References:

Canon 9; EC 7-21; KRS 15.020, 15.205, 69.010

OPINION

The duties of the Attorney General of the Commonwealth of Kentucky are defined in KRS 15.020 and provide that he shall appear for the Commonwealth in all cases and proceedings in and before courts, tribunals or commissions in or out of the state in which the Commonwealth has an interest, except where it is made the duty of the Commonwealth’s Attorney or County Attorney to represent the Commonwealth. Under KRS 69.010 it is the duty of the Commonwealth’s Attorney to prosecute all violations of the criminal and penal law which are to be tried in the Circuit Court in that Commonwealth Attorney’s judicial circuit. In addition, the Commonwealth Attorney is charged with the responsibility and duty to prosecute any preliminary proceedings of such violations, including preliminary hearings and the presentation of evidence to a grand jury concerning such violations. Therefore, it appears that the Commonwealth’s Attorney has the primary responsibility of representing the Commonwealth in criminal proceedings of the type contemplated in the foregoing question.
Furthermore, our concern with the propriety of the proposed action, lies in the implication that the Commonwealth may be lending its authority to coerce or otherwise influence the outcome of separate proceedings, which have differing purposes if the Attorney General were to represent the Commonwealth in the civil as well as the criminal actions. We believe that the following language from EC 7-21 is applicable:
The civil adjudicative process is primarily designed for the settlement of disputes between parties, while criminal process is designed for the protection of society as a whole. Threatening to use, or using the criminal process to coerce adjustment of private civil claims or controversies is a subversion of that process; further, the person against whom the criminal process is so misused may be deterred from asserting his legal rights and thus the usefulness of the civil process in settling private disputes is impaired. As in all cases of abuse of judicial process, the improper use of criminal process tends to diminish public confidence in our legal system.
Although we recognize that the Office of the Attorney General would be acting in a public and not a private capacity in the proposed situation, we believe that the appearance of any professional impropriety should be avoided by the Attorney General to promote public confidence in our system and in the legal profession (Canon 9). We qualify our answer to this question, however, to the following extent: Pursuant to KRS 15.205, the Attorney General may direct a Commonwealth’s Attorney from another district to participate in the criminal proceedings and we do not believe that such action would imply a conflict of interest or potential subversion of the civil and criminal process. Under such circumstances, however, it must be clear that there is a need for such assistance and that the designated Commonwealth’s Attorney is acting solely under the control and at the direction of the Commonwealth’s Attorney for the district in question. All concerned must scrupulously avoid any conduct that might give the appearance of a conflict of interest or unfair advantage to the Commonwealth as a defendant in the civil proceedings.

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.