Can an assistant county or Commonwealth attorney defend criminal cases in another county, and can a county attorney handle a zone-change matter in a different county?

Plain-English summary

The committee took three questions about prosecutors' assistants and answered the first two no and the third yes. On an assistant county attorney or assistant Commonwealth attorney defending a criminal case in a county other than the county of appointment, the committee said the questions were already answered in KBA E-61, which held that a Commonwealth attorney, a prosecuting attorney of a police court, or any of their assistants could not ethically represent defendants in criminal cases in any court of criminal jurisdiction; the assistant stands in the same shoes as the principal. It marshaled the statutory scheme: KRS 69.020 (Commonwealth attorney shall not act as defense counsel except in pre-election cases or where he is a party), KRS 69.070 to 69.090 (appointment, powers, and stand-in role of assistant Commonwealth attorneys), KRS 30.140 (no law partner of a Commonwealth or county attorney may defend a person it is the official's duty to prosecute), KRS 69.210 (county attorney's prosecutorial duties in inferior courts), and KRS 69.300 (assistants have the same powers and duties), along with 1958 OAG 42,177. The controlling test was whether the lawyer's affiliation with an elected prosecutor implies a special advantage or unusual influence in a criminal case; the committee said the county attorney stands in the same position as a Commonwealth attorney, so he and his assistants should not act as defense counsel in any criminal prosecution.

On the third question, the committee treated a county attorney representing a client in another county's zone-change request as a civil action with no statutory limitation, so it answered yes. It added qualifications: a county attorney cannot represent the zoning board in his own county while also representing a client in a controversy with that board, nor should he associate with a nonresident attorney representing a client before the zoning board; and he may refer individual clients to a county attorney in an adjoining county to appear before the referring attorney's county zoning board, provided there is no conflict of interest or association of fees between the two county attorneys.

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 an assistant Commonwealth or county attorney defend a criminal case in a different county?

A: No. The committee held the assistant stands in the prosecutor's shoes and, following KBA E-61, may not defend criminal cases in any court of criminal jurisdiction in the Commonwealth.

Q: Can a county attorney represent a private client seeking a zone change in another county?

A: Yes. The committee treated it as a civil matter with no statutory bar, subject to there being no conflict of interest or fee-sharing with the local county attorney.

Q: What conflict limits apply to the zoning work?

A: A county attorney cannot represent his own county's zoning board while representing a client against it, and any referral to an adjoining county attorney must avoid a conflict or association of fees.

Background and rules framework

The opinion applies the former Code's conflict and imputation principles (DR 5-105) and Canon 9's appearance-of-impropriety standard, reinforced by Kentucky statutes barring prosecutors and their partners from criminal-defense work. The modern analogs are Model Rule 1.7 (concurrent conflicts), Model Rule 1.11 (government lawyers), and Model Rule 1.10 (imputation within a firm).

Citations and references

Rules of Professional Conduct:

• DR 5-105 (conflicts and imputation); modern analogs Model Rule 1.7, Model Rule 1.11, and Model Rule 1.10

Statutes:

• KRS 30.140; KRS 69.020; KRS 69.070 to 69.090; KRS 69.210; KRS 69.300

Other opinions cited:

• KBA E-31, E-61 (prosecutors and criminal defense); 1958 OAG 42,177

See also

• KBA Ethics Op. E-194: Office-Sharing With a Commonwealth Attorney
• KBA Ethics Op. E-211: Prosecutor as Criminal Defense Counsel
• KBA Ethics Op. E-225: City Attorney's Partner as Defender

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-193.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-193
Issued: September 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 1:

May an Assistant County Attorney defend a criminal case in a county other than the county of appointment to Assistant County Attorney?

Answer 1:

No.

Question 2:

May an Assistant Commonwealth Attorney defend a criminal case in a county other than the county of appointment to Assistant Commonwealth Attorney?

Answer 2:

No.

Question 3:

May a County Attorney represent a client in another county in a request for a zone change?

Answer 3:

Yes.

References:

Opinion KBA E-31, E-61; KRS 30.140, 69.020, 69.070 to 69.090, 69.210, 69 300; 1958 OAG 42, 177
OPINION

It appears that these questions have already been answered in Opinion KBA E-61 which stated that a Commonwealth Attorney, Prosecuting Attorney of a police court, or any assistant of any of them could not ethically represent defendants in criminal cases in any court of criminal jurisdiction. The Assistant County Attorney or the Assistant Commonwealth Attorney stands in the same shoes as the County Attorney or Commonwealth Attorney.
KRS 69.020 provides that a Commonwealth Attorney shall not act as a defense counsel in any criminal prosecution in this Commonwealth except in cases in which he was employed before his election or to which he is a party
KRS 69.070 provides for the appointment of Assistant Commonwealth Attorneys in counties having a population of 200,000 or more. KRS 69.080 provides that Assistant Commonwealth Attorneys shall have the same powers and perform the same duties as the

Commonwealth Attorney. KRS 69.090 provides that in the absence of the Commonwealth Attorney his assistants shall act in his stead.
KRS 30.140 provides that no law partner of a Commonwealth Attorney shall defend or aid in the defense of any person whom it is the duty of the official to prosecute. The Attorney General has given an opinion that it would be clearly unethical for a law partner of a Commonwealth Attorney to accept employment to defend a person charged with a crime in the Quarterly Court, 1958 OAG 42,177.
KRS 69.210 provides that the County Attorney shall attend to all prosecutions in courts inferior to the Circuit Court except those having a prosecuting attorney.
KRS 30.140 provides that no law partner of a County Attorney shall defend or aid in the defense of any person whom it is the duty of such official to prosecute.
KRS 69.300 provides that the Assistant County Attorneys shall possess the same qualifications as County Attorneys and shall have the same powers and perform the same duties.
The test to be applied to assistants to the County Attorney and the Commonwealth Attorney is whether or not the lawyer representing criminal defendants by his affiliation with an elected prosecutor implies a special advantage or unusual influence in a criminal case. The attorney in this situation should stay away from any position which would establish an apparent conflict of interests. Although there is no statute which specifically prohibits County Attorneys from acting as defense counsel in the courts which they are elected to prosecute criminal defendants, we believe that the County Attorney stands in the same position as a Commonwealth Attorney and that he or his assistant should not act as defense counsel in any criminal prosecution in the Commonwealth. See KRS 69.020 and Opinion KBA E-31.
The situation involving a County Attorney representing a client in another county in a request for a zone change is considered a civil action. There are no statutory limitations on County Attorneys representing individual clients in civil actions in adjoining counties. Of course, a County Attorney cannot represent a zoning board in his own county and also represent an individual client who has a controversy with the zoning board; nor should a County Attorney associate himself with a nonresident attorney who represents a client before the zoning board.
We see nothing wrong with a County Attorney referring individual clients to a County Attorney in an adjoining county to represent that client before the referring attorney’s county zoning board; however, there should not be any conflict of interest or association of fees between the two County Attorneys in this situation.

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.