Can one lawyer, or one firm, represent two or more Kentucky cities at the same time?

Plain-English summary

The committee answered both questions yes, but only on a contract basis. The threshold concern was Section 165 of the Kentucky Constitution and KRS 61.080, which provide that no person shall at the same time fill two municipal offices, whether in the same or different municipalities. The committee said the answer turns on what "represent" means: if the lawyer's positions are municipal or public offices, holding two would violate Section 165 and KRS 61.080, and DR 1-102's bar on conduct that adversely reflects on fitness to practice would be implicated.

To distinguish a public office from mere employment, the committee applied the five elements of Howard v. Saylor, 204 S.W.2d 815 (Ky. 1947): creation by the constitution, legislature, or authorized municipal body; a delegation of sovereign power exercised for the public; defined powers and duties; independent performance; and permanency or continuity. It explained that a city may hire private counsel on a contract basis to handle its legal matters without officially appointing a city attorney (OAG 73-759), in which case the attorney is an employee, not a municipal officer (OAG 71-523). Relying on City of Glasgow v. Burchett, 419 S.W.2d 544 (Ky. 1967), and KBA E-88 (1974) (a county attorney may represent a city in the same county on a contract basis), the committee concluded an attorney who is a city official in one city may, on a contract basis, advise a different city without holding incompatible offices under Section 165, and may represent two or more municipalities simultaneously so long as he is not a city official of any of them. In doing contract work, the attorney must be careful that the nature of the work does not fall within the elements of a public office, and must decline or withdraw under DR 5-105 if conflicting interests between the cities would impair his judgment. On the second question, the committee said the answer to the first disposes of it: if there is no conflict of interest for the lawyer, the matter is not within DR 5-105(D).

Currency note

This opinion was issued in 1979 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 one lawyer represent two or more Kentucky cities at once?

A: Yes, under this opinion, but only on a contract basis (as an employee, not a public officer of any city), and subject to conflict limits.

Q: Why does the "contract basis" qualification matter?

A: Because Section 165 of the Kentucky Constitution and KRS 61.080 bar one person from holding two municipal offices; contract counsel is an employee, not an officer, so the bar does not apply.

Q: What distinguishes a public office from contract employment?

A: The five Howard v. Saylor elements, including a delegation of sovereign power, defined statutory duties, independent performance, and permanency.

Q: Can partners in one firm each represent different cities?

A: Yes, on the same contract basis. The committee said if there is no conflict of interest, the firm-imputation rule DR 5-105(D) is not implicated.

Background and rules framework

The opinion applies DR 1-102 (conduct reflecting on fitness) and DR 5-105 (conflicts and imputation) of the former Code, read against Kentucky's constitutional and statutory bar on holding incompatible municipal offices. The modern analogs are Model Rule 1.7 (concurrent conflicts), Model Rule 1.13 (organization as client), and Model Rule 1.11 (government lawyers).

Citations and references

Rules of Professional Conduct:

• DR 1-102 (fitness) and DR 5-105 (conflicts, imputation); modern analogs Model Rule 1.7, Model Rule 1.13, and Model Rule 1.11

Statutes and constitutional provisions:

• Kentucky Constitution Section 165; KRS 61.080 (no person may hold two municipal offices)

Cases:

• City of Glasgow v. Burchett, 419 S.W.2d 544 (Ky. 1967), contract counsel for another city is not an incompatible office
• Howard v. Saylor, 204 S.W.2d 815 (Ky. 1947), elements of a public office

Other opinions cited:

• KBA E-88 (1974) (county attorney representing a city on contract); OAG 73-759, OAG 71-523

See also

• KBA Ethics Op. E-196: City Attorney as Criminal Defender
• KBA Ethics Op. E-222: Dual Certification on a Title Exam
• KBA Ethics Op. E-214: Trial Commissioner Practice Limits

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-199.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-199
Issued: January 1979

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 a lawyer represent two or more Kentucky municipalities simultaneously?

Answer 1:

Yes, but only on a contract basis.

Question 2:

May partners or associates in the same law firm represent two or more Kentucky municipalities?

Answer 2:

Yes, but only on a contract basis.

References:

Opinion KBA E-88 (1974); DR 1-102, 5-105; Constitution § 165; KRS 61.080; City of Glasgow v. Burchett, 419 S.W.2d 544 (Ky. 1967); Howard v. Saylor, 204 S.W.2d 815 (Ky. 1947); OAG’s 73-759, 71-523
OPINION

Question 1
Section 165 of the Kentucky Constitution and KRS 61.080 state that “no person shall, at the same time, fill two municipal offices, either in the same or different municipalities, ….”
Before Question I can be answered, it must be determined in which context the word “represent” is being used. If the positions the attorney fills are municipal or public offices, then he is clearly in violation of Constitution § 165 and KRS 61.080. DR 1-102 states, “A lawyer shall not:…engage in … conduct that adversely reflects on his fitness to practice law.” Thus, an attorney who held two or more municipal offices in clear violation of KRS 61.080 would be engaged in conduct that would reflect adversely on his fitness to practice law. Thus the question to be asked is, “When does a municipal or public position become a public or municipal office?’’ In Howard v. Saylor, 204 S.W.2d 815, 817 (Ky. 1947), the following elements were delineated as necessary to establish a public office:
(1) It must be created by the Constitution or by the Legislature or created by a municipality or other body through authority conferred by the Legislature;
(2) it must possess a delegation of a portion of the sovereign power of government, to be exercised for the benefit of the public;

(3) the powers conferred, and the duties to be discharged, must be defined, directly or impliedly, by the Legislature or through legislative authority;
(4) the duties must be performed independently and without control of a superior power, other than the law, unless they be those of an inferior or subordinate office, created or authorized by the Legislature, and by it placed under the general control of a superior officer or body;
(5) it must have some permanency and continuity, and not be only temporary or occasional.
A city can hire private counsel on a contract basis to handle generally its legal matters and not officially appoint the counsel as the city attorney (OAG 73-759). In this case the attorney is considered only an employee and not a municipal officer (OAG 71-523). Thus, the attorney merely represents the city or cities on a contract basis. An attorney can be a city official in one city yet accept employment from another merely to advise the city in its legal matters and not hold incompatible offices within the meaning of Constitution § 165. Glasgow v. Burchett, 419 S.W.2d 544 (Ky. 1967). A county attorney may properly represent a city in the same county on a contract basis (Opinion KBA 88 (March 1974)). Hence, an attorney city official may represent a different city on a contract basis and not be incompatible within the meaning of Constitution § 165. Certainly, an attorney may represent two or more municipalities simultaneously on a contract basis and not be a city official of any of the cities. However, in representing a city on a contract basis the attorney must be careful not to have the nature of his work fall within the elements of a public office. If representing two or more of these cities would impair the judgment because of conflicting interests between the cities, it is the attorney’s duty to decline proffered employment or withdraw (DR 5-105).
Question 2
The answer to Question 1 disposes of Question 2, since if it is not a conflict of interest to the lawyer, it is not within the purview of DR 5-105(D).

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.