Can a part-time assistant Commonwealth attorney also run a private law practice, take divorce cases, and handle workers' compensation matters?

Plain-English summary

The committee took three questions about a part-time assistant Commonwealth attorney. It assumed the lawyer was not a full-time Commonwealth attorney and so was free to engage in private practice. The committee paired that with the general caution that a lawyer should strive to avoid not only professional impropriety but also its appearance.

On private practice generally, the committee answered a qualified yes: an assistant Commonwealth attorney or his associates should be very reluctant to take a civil case where there is a possibility of further criminal action, but if the possibility of subsequent criminal proceedings is only remote, the lawyer may take the case and later excuse himself if the remote possibility becomes real. On divorce actions involving children, the committee said a divorce proceeding is no different from any other civil case under that same standard, so the answer was again a qualified yes. On workers' compensation, the committee applied the analogy of the county-attorney opinion in KBA E-66 (drawing on the Kentucky Court of Appeals, 1974) and concluded that a Commonwealth attorney may practice before the Workmen's Compensation Board and handle those cases.

Currency note

The Kentucky Bar Association has flagged this opinion as modified 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 Treat this page as historical context, not current guidance.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 part-time assistant Commonwealth attorney also keep a private practice?

A: Yes, on a qualified basis. The committee assumed a part-time prosecutor and allowed private practice, while cautioning against civil matters likely to spawn criminal proceedings. The opinion has since been modified by KBA E-444 (2018).

Q: Could that prosecutor handle divorce cases involving children?

A: Qualified yes. The committee treated a divorce as no different from any other civil case under the same standard about avoiding matters with a real possibility of further criminal action.

Q: What about workers' compensation cases?

A: Yes. By analogy to the county-attorney opinion KBA E-66, the committee concluded a Commonwealth attorney may practice before the Workmen's Compensation Board.

Background and rules framework

The opinion applies DR 9-101 and EC 9-6, which address avoiding even the appearance of impropriety by a lawyer connected to public office, to a part-time prosecutor's private civil practice. The committee's controlling factor was the likelihood that a civil matter could turn into a criminal one in which the prosecutor's office had a role. The modern analogs are Model Rule 1.11 (special conflict rules for current and former government officers and employees) and Model Rule 1.7 (concurrent conflicts of interest).

Citations and references

Rules of Professional Conduct:

• DR 9-101 and EC 9-6 (appearance of impropriety in public employment); modern analogs Model Rule 1.11 and Model Rule 1.7

Statutes:

• KRS 15.760(3); KRS 342.425

Other opinions cited:

• KBA E-66 (county attorney practicing before the Workmen's Compensation Board)

See also

• KBA Ethics Op. E-211: Part-Time Prosecutor as Defense Counsel
• KBA Ethics Op. E-257: Part-Time Prosecutor Conflicts
• KBA Ethics Op. E-238: Office-Sharing With a Prosecutor

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-210.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-210
Issued: March 1979
Modified by E-444 (2018)

Question 1:

May an assistant Commonwealth attorney or his associates engage in the private practice of law?

Answer 1:

Qualified yes.

Question 2:

May an assistant Commonwealth attorney or his associates participate in any divorce action where children are involved?

Answer 2:

Qualified yes.

Question 3:

May an assistant Commonwealth attorney’s practice include Workmen’s Compensation cases?

Answer 3:

Yes.

References:

Opinion KBA E-66; DR 9-101; KRS 15.760(3), 342.425; EC 9-6
OPINION

The Committee assumes that the assistant Commonwealth attorney was not a full time Commonwealth attorney and therefore is allowed to engage in the private practice of law. At all times a lawyer should strive to avoid not only professional impropriety but also the appearance of impropriety. An assistant Commonwealth attorney or his associates should be very reluctant to take a civil case where there is a possibility of further criminal action. However, if there is only a remote possibility of subsequent criminal proceedings the assistant Commonwealth attorney may take the case, since the attorney could later excuse himself if the remote possibility develops into a reality.
A divorce proceeding is no different from any other civil case as set forth above.
With respect to Workmen’s Compensation cases, the analogy of the county attorney opinion in Opinion KBA E-66 written by the Kentucky Court of Appeals, 1974, is applicable to a Commonwealth attorney. Thus, a Commonwealth attorney may practice before the Workmen’s Compensation Board and handle Workmen’s Compensation cases.

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.