Can a full-time government agency lawyer privately represent clients against another agency, in a state disciplinary hearing, or as criminal defense counsel?

Plain-English summary

The committee answered three related questions from a lawyer employed full time by the State Department of Transportation, who worked primarily on driver's-license hearings and matters for the department. It treated all three as the same problem, whether an attorney can serve one master against another, and answered no to each.

On representing a private client against another state agency, the committee placed the issue squarely within Canon 5. Even without a direct subject-matter conflict in a given case, the lawyer could not escape the umbrella of his employment, and the fact that the same entity employs both him and the adverse party would create compromising influences and loyalties under EC 5-1. The DR 5-105(C) exception for multiple representation was deemed insufficient: the government position is continuous and gives rise to innumerable conflicts, securing consent from the governor and agency commissioners in each case would be procedurally awkward, and the lawyer's concern for his own livelihood could make him act more as an arbitrator than an advocate, so his judgment would not be free and he could not represent either side with the zealousness Canon 7 requires. On representing an employee of another department in a disciplinary hearing, the committee relied on EC 5-18 (a lawyer for an entity owes allegiance to the entity, not to its individual officers or employees) and reasoned that a state-employee disciplinary hearing is essentially like representing a private client against the state in a courtroom, so differing interests would necessarily be present. On criminal defense, the committee acknowledged In re Kenton County Bar Association (a subordinate-court judge could represent criminal defendants in other counties) but concluded that if a Department of Transportation lawyer owes the Commonwealth an allegiance like that of a prosecutor or police officer, representing a criminal defendant would be inconsistent with that allegiance (citing Tucker v. Kentucky Bar Association); since the lawyer could not represent a client civilly or in a disciplinary hearing against his employer, it would be incongruous to let him represent a criminal defendant before the same employer.

Currency note

The Kentucky Bar Association has flagged this opinion as overruled by KBA E-444 (2018). 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. 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 full-time state agency lawyer take a private case against a different agency?

A: No, under this opinion. The committee found the lawyer's continuous government employment created compromising loyalties under Canon 5 and EC 5-1. The opinion has since been overruled by KBA E-444 (2018).

Q: Could he represent another department's employee at a disciplinary hearing?

A: No. Relying on EC 5-18, the committee found differing interests would necessarily be present, like representing a private client against the state.

Q: Could he serve as criminal defense counsel?

A: No. The committee reasoned that if his allegiance to the Commonwealth resembled a prosecutor's, defending a criminal case would be inconsistent with that allegiance.

Background and rules framework

The opinion applies Canon 5 and Canon 7 of the former Code, with EC 5-1, EC 5-18, and DR 5-105, to a full-time government lawyer's outside representations. The modern analogs are Model Rule 1.7 (concurrent conflicts), Model Rule 1.11 (special conflict rules for government lawyers), and Model Rule 1.13 (organization as client).

Citations and references

Rules of Professional Conduct:

• Canon 5, Canon 7, EC 5-1, EC 5-18, DR 5-105; modern analogs Model Rule 1.7, Model Rule 1.11, and Model Rule 1.13

Cases:

• In re Kenton County Bar Association, 236 S.W.2d 906 (Ky. 1951), conflict turns on the nature of the public office
• Tucker v. Kentucky Bar Association, 550 S.W.2d 467 (Ky. 1977)

See also

• KBA Ethics Op. E-199: Representing Multiple Cities
• KBA Ethics Op. E-212: Former Government Lawyer Conflicts
• KBA Ethics Op. E-196: City Attorney as Criminal 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-200.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-200
Issued: January 1979
Overruled by E-444 (2018)
Question 1:

May an attorney employed full time by a government agency represent a client in a matter unrelated to his employment before another governmental agency?

Answer 1:

No.

Question 2:

May he represent another employee of a different department before a disciplinary hearing?

Answer 2:

No.

Question 3:

May he represent a client charged with a crime in a circuit court?

Answer 3:

No.

References:

ABA Canon 5, 7; EC 5-1, 5-18; DR 5-105; In re Kenton County Bar Assn, 236 S.W.2d 906 (1951); Tucker v. Kentucky Bar Assn, 550 S.W.2d 467 (Ky. 1977)
OPINION

These questions represent essentially the same problem; whether an attorney can serve one master against another. It has been traditionally recognized that he cannot.
The facts behind these questions involve an attorney employed by the State Department of Transportation involved primarily in driver’s license hearings and matters for the department itself. He requests an opinion upon the ethics of his representation of a client against another government agency (e.g. Department of Insurance), an employee of another governmental department in a disciplinary hearing, and a defendant in a criminal action in circuit court.
The answer to the first question lies squarely within the Canon 5 of the ABA Code of Professional Responsibility. Although a direct conflict of interest in subject matter may not exist in a particular case, in every case in which the attorney might represent a client

before another state agency, that attorney could not slip himself out from under the umbrella of his employment. Certainly the fact that he is employed by the same entity which employees the adverse party would consist of “compromising influences and loyalties” under EC 5-1.
The exception under DR 5-105(C) allowing the attorney to represent multiple parties which may affect his free judgment is scarcely sufficient in this instance. First, the attorney’s governmental position is a continuous employment giving rise to innumerable conflicts of this nature, and second, it would be procedurally awkward to confer with all parties involved (i.e., the governor, the commissioners of the agencies) in each case which might arise. (Certainly other state-employed attorneys would seek to engage in this type of practice, and highly placed governmental officials would find themselves plagued with conferences from attorneys seeking exceptions.)
It would also seem that the number of consultations necessary to secure governmental consent would emphasize the attorney’s peculiar position and this could not add to his professional security. No matter what the extent of loyalty or relation of the attorney to the private client, the concern for one’s own livelihood is strong. There is a possibility that he might come to act more as an arbitrator than an advocate for either side.
Thus, his professional judgment would not be free and he could represent neither the private client nor the government agency with the zealousness required by Canon 7.
In answer to the second question concerning the attorney’s representation of a government employee of another department before a disciplinary hearing, EC 5-18 is persuasive and states thus: “A lawyer employed or retained by a corporation or similar entity owes his allegiance to the entity and not to a stockholder, director, officer, employee, representative, or other person connected with the entity.” Under this section a lawyer may represent such persons only if there is no differing interests present.
As a state employee disciplinary hearing is an advisory type proceeding, the situation would be essentially the same as if the attorney were representing a private client in the courtroom. Differing interests would be present by necessity, and the attorney could not ethically represent the employee.
The third question is slightly more complicated by appellate court decisions. The Court of Appeals in In re Kenton County Bar Assn, 236 S.W.2d 906 (1951), determined that the possibility of a conflict of interest where an attorney held a public office and represented a criminal defendant, depended upon the nature of the office. It ruled that even a judge of a subordinate court ethically may represent criminal defendants in counties other than the one in which he sat as judge.
However, if it can be said that a legal employee of the Department of Transportation owes an allegiance to the Commonwealth of Kentucky similar to that of a prosecuting attorney or police officer, such that the representation of a criminal defendant would be inconsistent with that allegiance, the question of any other impropriety is

irrelevant (Tucker v. Kentucky Bar Assn,. 550 S.W.2d 467 (Ky. 1977)); the attorney simply could not ethically violate his oath.
In view of the fact that the attorney could not ethically represent a client in a civil action or even in a disciplinary hearing against the state, his employer, it would be incongruous to allow him to represent a criminal defendant before the same employer. The same ethical considerations must apply here as well.

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.