Can a law partner or associate of a city attorney defend criminal cases in district or circuit court?

Plain-English summary

The committee considered whether a partner or associate of the city attorney of a city of the second class may defend criminal actions in district or circuit court, and answered with a qualified yes. It built on KBA E-196 (1978), which had ruled that a city attorney may not act as defense counsel in a criminal case where charges are brought by the city police, in either district or circuit court.

Applying that line to the city attorney's partner or associate, the committee drew the boundary by where the offense arose and who investigated it. An attorney or his partner may defend a criminal action that takes place outside the second-class city in which the attorney is employed. But the city attorney or his partner may not defend a criminal action in either district or circuit court if the offense occurs in that city or the city police investigate the criminal action.

Currency note

This opinion was issued in 1980 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 Treat this page as historical context, not current guidance.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 the city attorney's law partner defend criminal cases at all?

A: Qualified yes. The committee said the partner or associate may defend a criminal action arising outside the city where the attorney serves as city attorney.

Q: Where may the partner not defend?

A: In district or circuit court where the offense occurred in the city or the city police investigated the action; that is the boundary the committee drew from KBA E-196.

Q: Did it matter which court the case was in?

A: No. The restriction applies in both district and circuit court when the offense arose in the city or the city police investigated it.

Background and rules framework

The opinion applies DR 5-105's conflict and imputation principles to a second-class city attorney's partners and associates, extending KBA E-196's bar on a city attorney defending cases the city police bring. The modern analogs are Model Rule 1.7 (concurrent conflicts), Model Rule 1.10 (imputation within a firm), and Model Rule 1.11 (special conflict rules for government lawyers).

Citations and references

Rules of Professional Conduct:

• DR 5-105 (refusing employment that involves a conflict; imputation); modern analogs Model Rule 1.7, Model Rule 1.10, and Model Rule 1.11

Statutes:

• KRS 69.560

Other opinions cited:

• KBA E-18 (1963), E-196 (1978) (city attorneys defending criminal cases)

See also

• KBA Ethics Op. E-211: Prosecutor as Criminal Defense Counsel
• KBA Ethics Op. E-238: Office-Sharing With a Prosecutor
• 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-225.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-225
Issued: January 1980

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 a partner or associate of a city attorney of a city of the second class defend criminal actions in District and/or Circuit Courts?

Answer:

Qualified yes.

References:

DR 5-105; Opinion KBA E-18 (1963), E-196 (1978); KRS 69.560
OPINION

In Opinion KBA E-196 (1978), the Ethics Committee ruled that a city attorney may not act as defense counsel in a criminal case in which charges are brought by the police in that city in either District or Circuit Court.
The Committee, in viewing this request, feels that an attorney or his partner may defend a criminal action that would take place outside of the city of the second class in which an attorney is employed. However, the city attorney or his partner may not defend a criminal action in either the District Court or the Circuit Court if the offense occurs in that city or the city police investigate the criminal action.

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.