Can a part-time assistant county attorney defend someone in a civil action to collect delinquent child-support payments?

Plain-English summary

The committee considered whether a part-time assistant county attorney may represent the defendant in a civil action to collect delinquent dependency support, assuming the assistant's public duties are coextensive with the county attorney's. It answered no.

The committee laid out the office's overlapping public duties touching nonsupport. Nonsupport is a Class A misdemeanor under KRS 530.050, within the district court's jurisdiction, and the county attorney must prosecute violations of the criminal laws there (KRS 15.725(2)). Flagrant nonsupport is a Class D felony, within the circuit court's general jurisdiction, where the Commonwealth's attorney prosecutes and the county attorney must assist when necessary (KRS 15.725(3)). Under the Uniform Reciprocal Enforcement of Support Act (KRS Chapter 407), the county attorney must represent the person to whom support is owed (KRS 407.190, 407.250). Given these duties, the committee concluded the county attorney has a potential public duty adverse to the defendant in any nonsupport case, so representing the defendant would adversely affect the exercise of independent professional judgment on behalf of the public. The case could not be brought within DR 5-105(C), and DR 5-105(A) therefore required the county attorney to decline the employment.

Currency note

The Kentucky Bar Association has flagged this opinion as overruled by a 2018 opinion (the reproduced source text reads "Overruled by E-215 (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 Treat this page as historical context, not current guidance.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 the controlling later opinion before relying on any specific rule mentioned here.

Common questions

Q: Could a part-time assistant county attorney defend someone in a delinquent-support collection case?

A: No, under this opinion. The committee found the office's adverse public duties created a conflict that DR 5-105 required the lawyer to avoid by declining. The KBA later flagged the opinion as overruled by a 2018 opinion.

Q: Why was the office's role treated as adverse to the support defendant?

A: The county attorney must prosecute nonsupport as a crime and, under URESA, must represent the person owed support, so the office has a potential duty adverse to a nonsupport defendant.

Q: Which rule required declining the case?

A: DR 5-105(A), because the conflict could not be brought within the consent exception of DR 5-105(C).

Background and rules framework

The opinion applies DR 5-105 of the former Code, which required declining or withdrawing from employment that would adversely affect the lawyer's independent professional judgment, to a part-time prosecutor whose office had public duties adverse to the proposed private client. The modern analog is Model Rule 1.7 (concurrent conflicts of interest), as informed by Model Rule 1.11 for government lawyers.

Citations and references

Rules of Professional Conduct:

• DR 5-105 (declining employment that impairs independent judgment); modern analog Model Rule 1.7

Statutes:

• KRS 15.725; KRS 23A.010; KRS 24A.110; KRS 407.190; KRS 407.250; KRS 530.050; KRS 532.090; KRS 532.100

See also

• KBA Ethics Op. E-211: Prosecutor as Criminal Defense Counsel
• KBA Ethics Op. E-210: Part-Time Prosecutor Private Practice
• 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-215.pdf

Original opinion text

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

Kentucky Bar Association
Ethics Opinion KBA E-215
Issued: May 1979
Overruled by E-215 (2018)
Question:

May a part-time assistant county attorney represent the defendant in a civil action to collect delinquent dependency support payments?

Answer:

No.

References:

DR 5-105; KRS 15.725, 23A.010, 24A.110, 407.190, 407.250, 530.050, 532.090, 532.100
OPINION

We assume that an assistant county attorney’s public duties are coexistent with those of the county attorney.
Nonsupport is denounced as a Class A misdemeanor by KRS 530.050 and is within the jurisdiction of the district court, KRS 24A.110, 532.090, 532.100. It is the county attorney’s duty to prosecute all violations of the criminal laws within the jurisdiction of the district court, KRS 15.725(2).
Flagrant nonsupport is denounced as a Class D felony by KRS 530.050 and is within the examining jurisdiction of the district court, KRS 24A.110, and the general jurisdiction of the circuit court, KRS 23A.10. It is the duty of the Commonwealth’s attorney to prosecute all violations of the criminal laws in circuit court, KRS 15.725, and it is the county attorney’s duty to assist the Commonwealth’s attorney in circuit court “when necessary,” KRS 15.725(3).
Under KRS Chapter 407, the Uniform Reciprocal Enforcement of Support Act, it is the duty of the county attorney to represent the person to whom a duty of support is owed, KRS 407.190, 407.250.
The county attorney thus has a potential public duty adverse to the defendant in any case of alleged nonsupport. If he represents the defendant in such a case, the exercise of his independent professional judgment in behalf of the public will certainly be adversely affected. Such a case cannot be brought within DR 5-105(C), and therefore DR 5-105(A) requires the county attorney to decline the employment.

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.