Can a lawyer who shares office space with a part-time Commonwealth attorney handle criminal defense in district or circuit court?

Plain-English summary

The committee considered whether a lawyer who shares office space with a part-time Commonwealth attorney may practice criminal law in district or circuit court, and answered no to both. It started from KBA E-61, which determined that a Commonwealth attorney could not defend a criminal case in any court in the Commonwealth, a prohibition extended to the prosecutor's law partners under KRS 30.140.

For associates or persons who are not partners and whose only affiliation is the sharing of office space and secretarial help, the committee applied the test of whether clients or the public might be led to believe that lawyers so affiliated have such a close personal and professional relationship as to imply special advantage or unusual influence. It concluded the office-sharing relationship in the questions presented an apparent conflict under that test. Under Canon 9, a lawyer should avoid even the appearance of professional impropriety; and DR 5-105(D) specifically requires an attorney's affiliate to decline employment where the attorney himself must decline under a disciplinary rule. The committee said a lawyer sharing office space with a part-time Commonwealth attorney can arguably be classified as such an affiliate, and it pointed to KBA E-167, which had reached the same result for lawyers sharing office space with an assistant county attorney.

Currency note

The Kentucky Bar Association has flagged this opinion as overruled by KBA E-444 (2018). 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. Treat this page as historical context, not current guidance. Verify against the current rules and KBA E-444 before relying on any specific rule mentioned here.

Common questions

Q: Could a lawyer sharing office space with a part-time Commonwealth attorney defend criminal cases?

A: No, under this opinion, in either district or circuit court. The committee treated the office-mate as an affiliate barred under DR 5-105(D). The opinion has since been overruled by KBA E-444 (2018).

Q: What test did the committee use for office-sharers?

A: Whether clients or the public might be led to believe that the affiliated lawyers have such a close personal and professional relationship as to imply special advantage or unusual influence.

Q: Why did DR 5-105(D) apply to a mere office-mate?

A: The committee reasoned that a lawyer sharing office space with the prosecutor can arguably be classified as an affiliate, and DR 5-105(D) requires an affiliate to decline where the attorney himself must decline.

Background and rules framework

The opinion rests on Canon 9's appearance-of-impropriety standard and DR 5-105(D)'s imputation of disqualification to affiliates, as applied to a lawyer sharing office space with a prosecutor. The modern analogs are Model Rule 1.7 (concurrent conflicts) and Model Rule 1.10 (imputation within a firm); the office-sharing analysis turned on public perception of special advantage rather than a strict partnership.

Citations and references

Rules of Professional Conduct:

• Canon 9 (appearance of impropriety) and DR 5-105(D) (imputation to affiliates); modern analogs Model Rule 1.7 and Model Rule 1.10

Statutes:

• KRS 30.140 (no law partner of a prosecutor may defend those it is the official's duty to prosecute)

Other opinions cited:

• KBA E-61 (prosecutor may not defend criminal cases), E-167 (office-sharing with an assistant county attorney)

See also

• KBA Ethics Op. E-238: Office-Sharing With a Prosecutor
• KBA Ethics Op. E-193: Assistant Prosecutors Defending
• KBA Ethics Op. E-211: Prosecutor as Criminal Defense Counsel

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-194.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-194
Issued: September 1978
Overruled by E-444 (2018)
Question 1:

May a lawyer who shares office space with a part-time Commonwealth Attorney practice criminal law in District Court?

Answer 1:

No.

Question 2:

May a lawyer who shares office space with a part-time Commonwealth Attorney practice criminal law in a Circuit Court?

Answer 2:

No.

References:

Opinion KBA E-61, 167; Canon 9; DR 5-105(D); KRS 30.140

OPINION
In Opinion KBA E-61, the Ethics Committee determined that a Commonwealth Attorney could not defend a criminal case in any court in the Commonwealth. This prohibition was found to extend to law partners of Commonwealth Attorneys under KRS 30.140. As to Commonwealth Attorneys’ associates, or persons who are not a partner and who have no affiliation beyond the sharing of office space and secretarial help, the Committee adopted this test “whether clients or the public might be led to believe that lawyers so affiliated have such close personal, and professional relationship as to imply special advantage or unusual influence.” The relationship described in Questions 1 and 2 above would present an apparent conflict under this test. Under Canon 9 of the Code of Professional Responsibility a lawyer should avoid even the appearance of professional impropriety. Disciplinary Rule 5-105(D) specifically requires an attorney’s affiliate to decline employment where the attorney himself is required to decline employment under a disciplinary rule. An attorney sharing office space with a part-time Commonwealth Attorney can arguably be classified as an affiliate. See also Opinion KBA E-167 regarding lawyers sharing office space with an Assistant County Attorney where it was determined that such lawyers could not defend criminal cases in the District Court or the Circuit Court.

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.