Can a lawyer share office space, staff, and a waiting room with a circuit judge before whom the lawyer appears?

Plain-English summary

The committee was asked whether a lawyer could share office space, a secretary, a library, and a waiting room with a circuit judge in the same circuit before whom the lawyer would practice, and answered no. It relied on Canon 9 (a lawyer should avoid even the appearance of professional impropriety) and DR 9-101(C) (a lawyer shall not state or imply an ability to improperly influence a tribunal or public official). Without questioning the motives for the arrangement, the committee found it would appear to the public that the attorney could gain special favors for clients, whether in criminal or civil matters before the circuit judge.

The committee drew on its earlier opinions. KBA E-61 held that an attorney sharing a law office with a police judge could not represent persons arraigned before that judge, an interpretation the committee described as the most restrictive to apply to such arrangements; it followed that someone sharing office space with a circuit judge would be entirely precluded from practicing criminal law before him. KBA E-44 held that an attorney defending criminal cases in circuit court could not share office space and a secretary with a Commonwealth Attorney because of the appearance of impropriety. The committee added that a circuit judge should avoid the appearance of impropriety and uphold the integrity and independence of the judiciary, in civil as well as criminal cases, and concluded that practicing before the circuit judge under the described arrangement must be condemned as a violation of the Code.

Currency note

This opinion was issued in 1978 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 Treat this page as historical context, not current guidance.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 a lawyer and a circuit judge share an office and staff if the lawyer appears before that judge?

A: No. The committee concluded the arrangement creates an appearance of impropriety and must be condemned as a violation of the Code.

Q: Does it matter whether the cases are civil or criminal?

A: No. The committee said the appearance of impropriety applies whether the matters before the judge are civil or criminal.

Q: What was the committee's concern about the public's perception?

A: That it would appear the attorney could gain special favors for his clients before the circuit judge, regardless of the parties' actual motives.

Background and rules framework

The opinion applies Canon 9 (appearance of impropriety) and DR 9-101(C) (not implying an ability to influence a tribunal improperly) of the former Code. The modern analog for the improper-influence concern is Model Rule 8.4(e), which makes it misconduct to state or imply an ability to improperly influence a government agency or official.

Citations and references

Rules of Professional Conduct:

• Canon 9 (appearance of impropriety), DR 9-101(C); modern analog Model Rule 8.4(e)

Other opinions cited:

• KBA Opinions E-44 (1971) and E-61 (1972)

See also

• KBA Ethics Op. E-180: Trial Commissioner Conflict
• KBA Ethics Op. E-181: County Judge/Executive Practicing Criminal Law

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-187.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-187
Issued: August 1978

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 a lawyer share office space, a secretary, a library and the same waiting room with a circuit judge within the same circuit as the lawyer and before whom the lawyer would be practicing?

Answer:

No.

References:

Opinion KBA E 44 (1971), E-61 (1972); Canon 9; DR 9-101(C)
OPINION

According to Canon 9 of the Code of Professional Responsibility, a lawyer should avoid even the appearance of professional impropriety. DR 9-101(C) states that a lawyer shall not state or imply that he is able to influence improperly or upon irrelevant grounds any tribunal, legislative body or public official. While this body does not question the motives for such an arrangement, nevertheless it would appear to the public that the attorney could gain special favors for his clients whether in criminal or civil matters before the circuit judge.
In Opinion KBA E-61 it was noted that an attorney who shares a law office with a police judge could not represent persons arraigned before the police judge. The Committee further stated that although the opinion dealt with the propriety of an attorney’s employment by a client who has appeared before his office “associate” as opposed to employment in criminal cases generally, they felt that this represented the most restrictive interpretation to be applied to such an arrangement. Thus, it necessarily follows that a person who shares office space with a circuit judge would be entirely precluded from practicing criminal law before him.
Opinion KBA E-44 stated that an attorney defending persons accused of crime in the circuit court could not share office space and a secretary with a Commonwealth Attorney because of the “appearance of impropriety.” A circuit judge should avoid the appearance of impropriety and should be ever mindful of his duty to uphold the integrity and independence of the judiciary. This should be the case regardless of whether the case before him would be civil or criminal. For the lawyer to practice before the circuit judge under the arrangement described must be condemned as a violation of the Code.

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.