Can an assistant Commonwealth attorney also serve as defense counsel in a criminal case?

Plain-English summary

The committee was asked whether an assistant Commonwealth attorney may act as defense counsel in a criminal case, and answered no. It traced the statutory background: KRS 69.020 had barred a Commonwealth's attorney from defending criminal prosecutions except in cases predating his election or to which he is a party; the 1976 General Assembly repealed that section effective January 1, 1978, and adopted KRS 15.740, which likewise provides that the Commonwealth's attorney shall not act as defense counsel in any criminal prosecution in any state or federal court in the Commonwealth except in cases to which he is a party.

The committee recalled its own line of opinions on the question, including KBA E-61 (relying on In re Kenton County Bar Association, 236 S.W.2d 906 (Ky. 1951), which held a Commonwealth attorney may not act as defense counsel) and KBA E-193 (an assistant Commonwealth attorney may not defend criminal cases even in a county other than his county of appointment). It collected a series of ABA Formal Opinions reaching the same result for prosecutors and their partners across counties, states, and federal courts. Applying Canon 5, the committee found it impossible for a prosecutor to retain independent professional judgment while acting at one time as prosecutor and at another as defense counsel, and under Canon 9 it concluded that even if Canon 5 could be satisfied, the appearance of impropriety and the erosion of public confidence in lawyers precluded the dual role, even in other counties or federal courts.

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 Treat this page as historical context, not current guidance.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: Could an assistant Commonwealth attorney defend a criminal case?

A: No. The committee concluded that the dual role is incompatible with independent professional judgment under Canon 5 and with the appearance-of-impropriety standard under Canon 9.

Q: Did it matter that the defense work was in a different county or in federal court?

A: No. The committee held the bar applied even in other counties or federal courts, both as a matter of the appearance of impropriety and under KRS 15.740, which reaches any state or federal court in the Commonwealth.

Q: Was there any exception?

A: The statute the committee discussed, KRS 15.740, excepts cases to which the Commonwealth's attorney is himself a party. The committee otherwise treated the prohibition as categorical.

Background and rules framework

The opinion applies Canon 5 (independent professional judgment) and Canon 9 (avoiding the appearance of impropriety) of the former Code, together with KRS 15.740's statutory bar on a Commonwealth's attorney serving as defense counsel. The modern analogs are Model Rule 1.7 (concurrent conflicts of interest) and Model Rule 1.11 (special conflict rules for government lawyers).

Citations and references

Rules of Professional Conduct:

• Canon 5 (independent professional judgment) and Canon 9 (appearance of impropriety); modern analogs Model Rule 1.7 and Model Rule 1.11

Statutes:

• KRS 15.740; former KRS 69.020 (repealed effective January 1, 1978)

Cases:

• In re Kenton County Bar Association, 236 S.W.2d 906 (Ky. 1951), Commonwealth attorney may not act as defense counsel

Other opinions cited:

• KBA E-61, E-193 (prosecutors and criminal defense)
• ABA Formal Opinions 16, 30, 55, 118, 136, 142, 262 (prosecutors, their partners, and criminal defense across jurisdictions)

See also

• KBA Ethics Op. E-210: Part-Time Prosecutor Private Practice
• 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-211.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-211
Issued: March 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:

May an assistant Commonwealth attorney act as defense counsel in a criminal case?

Answer:

No.

References:

Opinion KBA E-61, E-193; Canon 5, 9; KRS 15.740. 69.020; In re Kenton County Bar Assn, 236 S.W.2d 906 (KY 1951); ABA Formal Opinion 16, 30, 55, 118, 136, 142, 262.
OPINION

KRS 69.00 provides that a Commonwealth attorney shall not act as defense counsel in a criminal prosecution in this Commonwealth except in cases in which he was employed prior to his election or to which he is a party. The 1976 General Assembly repealed this section effective January 1, 1978. While repealing KRS 69.020, the legislature adopted KRS 15.740 which became effective January 1, 1978, which provides that the Commonwealth’s attorney shall not act as defense counsel in any criminal prosecution in any state or federal court in this Commonwealth except in cases in which he is a party.
This Committee has, on many occasions, addressed the issue of the Commonwealth attorney’s representations of criminal cases. See Opinion KBA E-61, in the case of In re Kenton County Bar Assn, 236 S.W.2d 906 (Ky 1951), held that a Commonwealth attorney shall not act as defense counsel in a criminal prosecution.
Recently we issued Opinion KBA E-193 which states that an assistant Commonwealth attorney could not defend criminal cases in a county other than a county of appointment to assistant Commonwealth attorney. This opinion rested largely with Opinion KBA E-61.
The ABA has issued many opinions on this area as follows: ABA Formal Opinion 16 advises that one member of the firm may not prosecute while the other member defends a criminal case; ABA Formal Opinion 30, a prosecutor in one state may not ethically defend a criminal case in another state; ABA Formal Opinion 55, a city attorney may represent defendants in criminal courts other than the one in which he prosecutes; ABA Formal Opinion 118, prosecutor may not accept employment to obtain a pardon or parole for one convicted of a crime in another county; ABA Formal Opinion 136, the attorney who represented a defendant before election may not

represent that person after election; ABA Formal Opinion 142, an assistant prosecutor or his partner may not defend the client in criminal case; ABA Formal Opinion 262, a state prosecuting attorney may not represent a criminal defendant before federal courts.
Canon 5 provides that a lawyer should exercise independent professional judgment on behalf of a client. To this Committee it is impossible for a prosecutor to defend cases in a court and retain his independent professional judgment while acting one time as prosecuting attorney and another as defense counsel. Further, Canon 9 provides that a lawyer should avoid giving the mere appearance of impropriety. It is the Committee’s feeling that even if the lawyer could get around Canon 5 the impropriety of the lawyer acting both as prosecutor and defense counsel should preclude the lawyer from acting. It is our feeling that the public confidence in the lawyers may be eroded by a lawyer acting as both prosecutor and defense counsel, even in other counties or federal courts.

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.